[Congressional Record Volume 144, Number 150 (Tuesday, October 20, 1998)]
[Senate]
[Pages S12686-S12688]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           CHARITABLE CHOICE

  Mr. ASHCROFT. Mr. President, recently, both the House and Senate 
voted unanimously to pass the conference report on S. 2206, the ``Coats 
Human Services Reauthorization Act of 1998.'' During House debate on 
the conference report, some members expressed concerns regarding bill 
language described as the ``charitable choice'' provision, which is 
similar to language I drafted for the welfare reform law passed in the 
104th Congress and signed by the President in August of 1996.
  As I have said in a previous floor statement, the charitable choice 
provision will expand the opportunities for private, charitable, and 
religious organizations to serve their communities with Community 
Services Block Grant (CSBG) funds. This provision expresses the 
judgment of Congress that these organizations can play a crucial role 
in helping people out of poverty through the CSBG program.
  I am confident that the charitable choice language in the Community 
Services Block Grant reauthorization is constitutional and represents 
sound public policy. However, I want to respond to the comments made 
regarding this provision, as critics of the provision seem to overlook 
recent case law of the Supreme Court regarding this issue, and even 
mischaracterize certain sections of the charitable choice provision.
  First, most of the concerns expressed by certain House members are 
based upon case law that does not represent the current jurisprudence 
of the Supreme Court. In recent years, the general trajectory of the 
Supreme Court's Establishment Clause cases has been in the direction of 
what constitutional scholars describe as ``neutrality theory.'' Under 
this theory, private organizations are eligible to provide government-
funded services to beneficiaries through contracts, grants, or vouchers 
without regard to religious character. Moreover, there are serious 
constitutional problems when the government screens potential service 
providers based upon religious beliefs and practices--which is what the 
critics of charitable choice want to do.
  The charitable choice provision in the 1996 welfare reform law and 
the Child Care Development Block Grant Program of 1990 conform to the 
principle of religious neutrality. Under the first legislation, 
charitable and faith-based organizations are eligible, on the same 
basis as all other non-governmental organizations, to receive federal 
funds to provide services to welfare recipients. Similarly, the child 
care law allows low-income parents to choose among an array of private 
providers--including religious ones--in obtaining federally funded day 
care services.
  The test the Supreme Court has used over the years to analyze 
Establishment Clause cases has been the ``Lemon test,'' which has the 
two-fold requirement that the government action in question must have a 
valid secular legislative purpose, and a primary effect that neither 
enhances nor inhibits religion. (In the recent case of Agostini v. 
Felton, the Court took the third prong, the ``entanglement'' analysis, 
and folded it into the second prong of the test). The first prong, 
requiring a valid secular purpose, is usually not subject to much 
controversy, as the Court has been highly deferential to the 
legislature's action. In its review of the Adolescent Family Life Act 
(AFLA), for example, the Court noted that the ``provisions of the 
statute reflect at most Congress' considered judgment that religious 
organizations can help solve the problems to which the AFLA is 
addressed. Nothing in our previous cases prevents Congress from making 
such a judgment or from recognizing the important part that religion or 
religious organizations may play in resolving certain secular 
problems.''
  The serious debate generally concerns the second prong of the Lemon 
test, namely, whether the ``primary effect'' of these social welfare 
initiatives is to advance religion. In neutrality theory, Lemon's 
primary-effect inquiry is accomplished by examining how a service 
provider actually spends the program monies. Obviously, the test is 
whether funds are being spent in accordance with the valid secular 
purposes set out in the governing statute, and as expressed in the 
service contract or grant at issue. These purposes necessarily exclude 
use of the monies for inherently religious programming.
  On the other hand, critics of charitable choice would argue that the 
primary-effect inquiry should focus on whether a service provider is 
religious in character, and if so, how religious. An organization found 
``too religious'' is dubbed ``pervasively sectarian,'' thereby 
disqualifying the organization as a provider of government-funded 
services.
  In recent years, the Supreme Court has been moving away from this 
``too religious'' versus ``secular enough'' inquiry, and toward the 
neutrality approach. Two of the Court's most recent pronouncements on 
this issue are

[[Page S12687]]

Agostini v. Felton and Rosenberger v. Rector and Visitors of the 
University of Virginia. Although the Court did not embrace the 
neutrality principle in these cases without certain qualifications, the 
law today is far closer to neutrality than to the ``no-aid 
separationism'' of the 1970s and mid-1980s espoused by critics of 
charitable choice.
  In Agostini, decided in 1997, the Court held that remedial education 
for disadvantaged students could be provided on the premises of K 
through 12 religious schools--the only entities the Court has declared 
in the past to be ``pervasively sectarian.'' The Court was no longer 
willing to assume that direct assistance would be diverted to the 
inculcation of religion by authorities at Roman Catholic elementary and 
secondary schools.
  In the 1995 Rosenberger case, the Court held that a state university 
could not deny student activity fund money, which was generally 
available to all students groups for student publications, to a certain 
student group based upon the religious content of its publication. The 
Court warned that the government's attempt to draw distinctions 
regarding religious content would require the government--and 
ultimately the courts--``to inquire into the significance of words and 
practices to different religious faiths, and in varying circumstances 
by the same faith. Such inquiries would tend inevitably to entangle the 
State with religion in a manner forbidden by our cases.'' The critics 
would ignore this warning in order to apply their ``too religious'' 
test.
  Several prominent constitutional law scholars have recognized the 
Court's movement toward neutrality, including Professor Douglas Laycock 
of the University of Texas, Professor John Garvey of Notre Dame, 
Professor Michael McConnell of the University of Utah, Professor 
Michael Paulsen of the University of Minnesota, and finally, Professor 
Carl H. Esbeck of the University of Missouri. Professor Esbeck worked 
closely with my staff to draft the charitable choice provision of the 
welfare law, as well as my Charitable Choice Expansion Act, which I 
introduced earlier this year.
  The consequences of relying upon the view propounded by critics of 
the charitable choice concept go beyond ignoring recent constitutional 
jurisprudence. They also result in bad public policy. Demanding that 
religious ministries ``secularize'' in order to qualify to be a 
government-funded provider of services hurts intended beneficiaries of 
social services, as it eliminates a fuller range of provider choices 
for the poor and needy, frustrating those beneficiaries with spiritual 
interests.
  In examining a neutral program that includes both religious and 
secular providers, what matters is how the government money is actually 
spent, not the ideological character of the provider. Strict adherence 
to the ``too religious'' distinction perpetuated by the critics could 
actually eliminate current successful providers from eligibility to 
receive government funds.
  Congress should continue to find ways to encourage successful 
charitable and faith-based organizations to unleash their effective 
good works upon society. The charitable choice provision is one such 
way to accomplish this goal.
  In their discussion of the charitable choice provisions in the CSBG 
reauthorization bill, critics fail to acknowledge a valid distinction 
made by the Supreme Court: the difference between direct and indirect 
funding of government programs. When a program is administered through 
the use of certificates or vouchers given to beneficiaries, the 
religious nature of the organization at which the beneficiary redeems 
the voucher is irrelevant.
  The Supreme Court has consistently held that government may confer a 
benefit on individuals, who exercise personal choice in the use of 
their benefit at similarly situated institutions, whether public, 
private nonsectarian, or religious, even if the benefit indirectly 
advances religion. The Court has made these rulings in Zobrest v. 
Catalina Foothills School District (1993), a case holding that the 
provision of special education services to a Catholic high student was 
not prohibited by Establishment Clause; in Mueller v. Allen (1983), 
where it upheld a state income tax deduction for parents paying 
religious school tuition; and in Witters v. Washington Department of 
Services for the Blind (1986), where the Court upheld a state 
vocational rehabilitation grant to disabled student choosing to use his 
grant for training as a cleric.
  Moreover, the Child Care and Development Block Grant program, which 
has been in existence since 1990, allows parents to send their children 
to day care centers that are unquestionably ``pervasively sectarian'' 
in nature. This program has never been challenged as being violative of 
the Establishment Clause.
  Should a community wish to set up a Community Services Block Grant 
program that gives individual beneficiaries vouchers or certificates to 
redeem at the location of their choice, there is no constitutional 
concern as to the religious nature of the organization providing 
services to that beneficiary.
  There were also concerns expressed on the House floor that 
individuals would be directed by the government to religious 
organizations to receive Community Services Block Grant Services and 
forced to participate in religious activities. These concerns indicate 
that some members may not fully understand how the Community Services 
Block Grant program operates. Under this program, beneficiaries choose 
where they want to receive CSBG services--the government does not force 
certain individuals into certain programs.
  CSBG services are not federal entitlements. This program was designed 
in the 1960s to provide flexible federal funding to communities to 
identify problems and needs in the community, and to then fashion and 
design a local solution. This is not a federally-directed solution. 
Rather, the CSBG program allows the community to find the most 
appropriate organizations in the community to offer different types of 
services to individuals.
  Community Services Block Grant services are offered voluntarily to 
individuals in the community. People are not directed into these 
programs by the government. In fact, there are most likely existing 
government programs in the community, offering similar types of 
services, such as job training, basic education courses, and housing 
services. The Community Services Block Grant program maximizes 
individual choice at the local level by providing services to those who 
are fighting their way out of poverty.
  Therefore, those who say that the charitable choice provision in the 
CSBG program is going to force individuals into religious programs and 
provide no alternatives misunderstand how the CSBG program operates.
  The critics are also wrong when they say that a faith-based provider 
can compel a beneficiary to go to worship services or to submit to an 
attempt of proselytization. The argument fails to acknowledge that the 
charitable choice provision contains language stating that ``[n]o funds 
provided directly to organizations shall be expended for sectarian 
worship, instruction, or proselytization.'' Thus, CSBG funds must not 
be used to carry out inherently religious purposes. Rather, the funds 
are for the secular public purposes of the legislation, which include 
reducing poverty, revitalizing low-income communities, and empowering 
low-income families and individuals in rural and urban areas to become 
fully self-sufficient, especially those families who are attempting to 
transition off of welfare.
  Therefore, the structure of the Community Services Block Grant 
program, along with the clearly spelled-out uses of and prohibitions on 
CSBG funding, ensure that beneficiaries will have maximized choices of 
where to receive services to help them escape poverty and reach self-
sufficiency.
  One argument was made that the charitable choice provision could 
result in the government having to provide financial audits of churches 
and other religious organizations who might be eligible for funds under 
a charitable choice program.
  This statement appears to express a concern that a religious 
organization would subject itself to government intrusion by its 
receipt of CSBG funds. I share this concern, and for that reason, I 
included in the charitable choice provision language protecting a 
religious organization from such intrusion. This language requires a 
religious organization to segregate government funds

[[Page S12688]]

from funds received from non-government sources. Additionally, the 
provision states explicitly that only government funds are subject to 
government audit.
  Therefore, the charitable choice provision protects participating 
religious organizations from unwarranted governmental oversight, while 
also holding such organizations financially accountable in the same way 
as all other non-governmental providers receiving government funding.
  There was also a statement made on the House floor that the 
charitable choice provision ``would seek to enact exemptions from the 
religious discrimination clauses of the Civil Rights Act of 1964.'' 
This is a misstatement of what the provision says. Charitable choice 
does not create an exemption from the Civil Rights Act of 1964. Rather, 
it states that it preserves the exemption in the law allowing religious 
organizations to make employment decisions based on religion. The 
Supreme Court affirmed the constitutionality of this provision in 
Corporation of the Presiding Bishop v. Amos (1987). Receiving 
government funds for a secular purpose does not, of course, result in a 
waiver of this exemption. See, e.g., Siegel v. Truett-McConnell 
College, 1994 WL 932771 (N.D. Ga. 1994).
  If a religious nonprofit organization must hire persons in open 
disagreement with the religious background and mission of the 
organization, its religious autonomy would be severely infringed. In 
fact, many successful faith-based organizations have stated that they 
would not take government funding if it would require them to hire 
employees who did not hold the same religious beliefs of the 
organization. For example, the International Union of Gospel Missions 
conducted a survey of their missions and found that some of these 
missions refused government funding if it required them to hire non-
Christians.
  The Charitable Choice makes clear that a religious organization 
maintains its Title VII exemption when it receives government funds to 
provide social services.
  There was also an argument made that the charitable choice provision 
would require the government to consider using fringe religious groups 
to provide CSBG services. Although I find this to be more of a scare 
tactic than a legitimate argument, I think it is obvious that the 
charitable choice provision will not require the government to blindly 
select any non-governmental organization that applies for CSBG funds. 
The government may require legitimate, neutral criteria to all who 
apply. No organization, religious or otherwise, can become a provider 
unless it can deliver on its grant or contract.
  Finally, there was an argument that the charitable choice provision 
could override the constitutional language of states prohibiting public 
funds from going to religious organizations. I would simply respond 
that the charitable choice provisions are in federal law dealing with 
federal dollars. We do not tell the states how to spend their own state 
tax funds.
  In conclusion, the opponents of the charitable choice concept have 
not taken into account the latest Establishment Clause jurisprudence. 
If there is a comprehensive, religiously neutral program, the question 
is not whether an organization is of a religious character, but how it 
spends the government funds.
  To reject charitable choice is to jeopardize Congress' ability to 
encourage proven, effective religious organizations to provide social 
services to our nation's needy with government funds. For years, these 
organizations have been transforming broken lives by addressing the 
deeper needs of individuals--by instilling hope and values that help 
change behavior and attitudes. By contrast, government-run programs 
have often failed in moving people from dependency and despair to 
independence. We must continue to find ways to allow private, 
charitable, and religious organizations to help administer the cultural 
remedy that our society so desperately needs. The charitable choice 
provision in the ``Coats Human Services Reauthorization Act of 1998'' 
is one way of accomplishing this goal.

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