Congressional Record, Volume 146 Issue 42 (Thursday, April 6, 2000)

[Congressional Record Volume 146, Number 42 (Thursday, April 6, 2000)]
[House]
[Pages H1916-H1941]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

AMERICAN HOMEOWNERSHIP AND ECONOMIC OPPORTUNITY ACT OF 2000

The Committee resumed its sitting.
Ms. PELOSI. Mr. Chairman, I strongly support the Shays/Nadler/
Crowley/Morella amendment to increase authorized HOPWA funding to $292
million for FY2001. This increase will allow the HOPWA program to meet
current needs and bring additional newly eligible communities into this
effective program.
The need for housing assistance among those living with HIV/AIDS is
greater now than ever. As new treatments allow infected individuals to
live longer, new HIV infections are continuing at a steady rate. This
means that the overall number of people living with HIV/AIDS has grown
to its highest level ever. The new treatments that are extending so
many lives involve a complicated regimen of medications, requiring
certain medications to be taken at certain times, certain medications
to be taken after eating, and still others on an empty stomach. This
makes adherence very difficult, and nearly impossible with stable
housing.
More than 200,000 people with HIV/AIDS are currently in need of
housing assistance, and 60% of those living with this disease will need
housing assistance at some point during their illness. HIV prevalence
within the homeless population is estimated to be ten times greater
than infection rates in the general population. In addition, homeless
individuals are

[[Page H1917]]

much less likely to have regular access to health care than the general
population and are therefore less likely to be tested for HIV than are
people with stable housing. One San Francisco study showed that up to
33% of homeless individuals who were living with HIV were unaware of
being HIV positive.
Under current HOPWA authority 101 jurisdictions qualified for FY2000
funding and HUD estimates that in FY2001, this will increase to between
105 and 111 qualified jurisdictions. HIV/AIDS community policy experts
have estimate that unless HOPWA funding is substantially increased,
jurisdictions will face decreased service levels and could suffer
decreased funding. To avoid these reductions, we must pass the Shays/
Nadler/Crowley/Morella amendment and provide HOPWA with the funding
necessary to ensure that people living with HIV and AIDS have access to
the stable housing that is necessary for their medical care.
The CHAIRMAN. The question is on the amendment, as modified, offered
by the gentleman from Connecticut (Mr. Shays).
The amendment, as modified, was agreed to.
The CHAIRMAN. It is now in order to consider Amendment No. 9 printed
in House Report 106-562.

Amendment No. 9 offered by Mr. Paul

Mr. PAUL. Mr. Chairman, I offer an amendment.
The CHAIRMAN. The Clerk will designate the amendment.
The text of the amendment is as follows:

Amendment No. 9 offered by Mr. Paul:
Page 78, after line 20, insert the following new section:

SEC. 408. PROHIBITION ON USE OF AMOUNTS TO ACQUIRE CHURCH
PROPERTY.

Section 105 of the Housing and Community Development Act of
1974 (42 U.S.C. 5305) is amended by adding at the end the
following new subsection:
``(i) Prohibition on Use of Assistance to Acquire Church
Property.--Notwithstanding any other provision of this
section, no amount from a grant under section 106 may be used
to carry out or assist any activity if such activity, or the
project for which such activity is to be conducted, involves
acquisition of real property owned by a church that is exempt
from tax under section 501(a) of the Internal Revenue Code of
1986 (26 U.S.C. 501(a)), unless the governing body of the
church has previously consented to such acquisition.''.
The CHAIRMAN. Pursuant to House Resolution 460, the gentleman from
Texas (Mr. Paul) and a Member opposed each will control 5 minutes.
The Chair recognizes the gentleman from Texas (Mr. Paul).
Mr. PAUL. Mr. Chairman, I yield myself such time as I may consume.
(Mr. PAUL asked and was given permission to revise and extend his
remarks.)
Mr. PAUL. Mr. Chairman, I would first like to thank my colleague, the
gentlewoman from Michigan (Ms. Kilpatrick) for cosponsoring this
amendment. This amendment is simple and straightforward. The amendment
merely states that it prohibits the use of funds for activities
involving the acquisition of church property unless the consent of the
governing body of the church is obtained. This means that community
development block grant money cannot be used to invoke eminent domain
and take a church away from the church owners or the occupants without
their permission.
It has been done in the past, and it is planned to be done in the
future. I think this is a very important amendment to make sure that
these funds are not used in this way. I think the point is that private
property is very important, that owners do have rights; and quite
frequently when this is invoked, it occurs in the poorer areas where
there is less legal protection and legal help.
I am very pleased to introduce this amendment. I am very pleased to
have the gentlewoman from Michigan (Ms. Kilpatrick) as the cosponsor.
Ms. KILPATRICK. Mr. Chairman, will the gentleman yield?
Mr. PAUL. I yield to the gentlewoman from Michigan, the coauthor.
Ms. KILPATRICK. Mr. Chairman, I stand as a cosponsor of this
amendment, and it is a good amendment. We have had several calls in our
office today wondering what it is, and we took the opportunity to
explain it to them.
Mr. Chairman, let me first thank the gentleman from Iowa (Chairman
Leach), the gentleman from New York (Mr. Lazio), as well as the
gentleman from New York (Mr. LaFalce), the ranking member, for the fine
work that they have done and the entire Committee on Banking and
Financial Services. I was a former Member of that committee, and I know
the hard work that they do.
No church in America should be denied the opportunity to participate
in a developing community. The amendment that the gentleman from Texas
(Mr. Paul) and I are offering today is to say that no community
development block grant funds can be used to take any church, unless
that church is involved and does agree in that selection.
With that, Mr. Chairman, this is a good amendment. I commend the
gentleman from Texas (Mr. Paul) for bringing it to my attention. We
have spoken to the minister and other people who are concerned about
this issue. I would move, Mr. Chairman, that we adopt the amendment.
Mr. PAUL. I appreciate the support of the gentlewoman.
Mr. LAZIO. Mr. Chairman, will the gentleman yield?
Mr. PAUL. I yield to the gentleman from New York.
Mr. LAZIO. Mr. Chairman, I want to thank the gentleman from Texas
(Mr. Paul) for bringing this amendment to the House floor to address an
important concern. I want to also thank the gentlewoman from Michigan
(Ms. Kilpatrick) as well.
I rise in support of the amendment and want to thank the gentleman
from Texas (Mr. Paul) for his hard work in getting this to the floor
and for his numerous discussions with my staff and with myself to
ensure that the various concerns that have been raised have been
addressed. I want to thank the gentleman. I am in strong support of it
and I urge passage.
Mr. PAUL. I thank the gentleman from New York (Mr. Lazio) for the
support.
Mr. FRANK of Massachusetts. Mr. Chairman, will the gentleman yield?
Mr. PAUL. I yield to the gentleman from Massachusetts.
Mr. FRANK of Massachusetts. Mr. Chairman, I would just join in making
it clear that we on the minority side have no objection to the ``render
unto Caesar'' amendment.
Mr. PAUL. I thank the gentleman from Massachusetts.
Mr. Chairman, I yield back the balance of my time.
The CHAIRMAN. Does any Member seek time in opposition?
If not, the question is on the amendment offered by the gentleman
from Texas (Mr. Paul).
The amendment was agreed to.
The CHAIRMAN. It is now in order to consider Amendment No. 10 printed
in House Report 106-562.

Amendment No. 10 Offered by Mr. Traficant

Mr. TRAFICANT. Mr. Chairman, I offer an amendment.
The CHAIRMAN. The Clerk will designate the amendment.
The text of the amendment is as follows:

Amendment No. 10 offered by Mr. Traficant:
At the end of title IV, add the following new section:

SEC. 408. CDBG SPECIAL PURPOSE GRANTS.

Section 107(a)(1) of the Housing and Community Development
Act of 1974 (42 U.S.C. 5307(a)(1)) is amended--
(1) in the matter preceding subparagraph (A)--
(A) by striking ``$60,000,000'' and inserting
``$95,000,000''; and
(B) by striking ``subsection (b)'' and inserting ``this
section''; and
(2) by striking subparagraph (G) and inserting the
following new subparagraph:
``(G) $35,000,000 shall be available in fiscal year 2001
for a grant to the City of Youngstown, Ohio, for the site
acquisition, planning, architectural design, and construction
of a convocation and community center in such city;''.
The CHAIRMAN. Pursuant to House Resolution 460, the gentleman from
Ohio (Mr. Traficant) and the gentleman from Massachusetts (Mr. Frank)
each will control 5 minutes.
The Chair recognizes the gentleman from Ohio (Mr. Traficant).
Mr. TRAFICANT. Mr. Chairman, I yield myself such time as I may
consume.
I want to thank the chairman for extending my existing authorization
for emergency homeownership counseling programs. They have been cited
to save homes with a 45-day notice. The Traficant amendment speaks for
itself.
Mr. Chairman, I reserve the balance of my time.
Mr. FRANK of Massachusetts. Mr. Chairman, I yield myself 1\1/2\
minutes.

[[Page H1918]]

Mr. Chairman, this is a proposal for $35 million out of CDPG funds
for a convention center. We have had a lot of debate about the
eligibility requirements of CDPG during the appropriation. At the
urging of the gentlewoman from Florida, we modified a proposal
extending funds to fire fighting, so that it was fully consistent with
CDBG eligibility.
This amendment would be a very big breach in that wall. It is a large
amount of money for a particular purpose; the purpose may well be a
reasonable one. There are many cities where similar needs could be put
forward. It has not had any consideration at the subcommittee or
committee level. There was some proposal made, and it was not pursued.
It takes a very large chunk of CDBG for special purpose. Indeed, if
you look at the current existing special purpose for CDBG, the existing
special purpose for CDBG is $60 million. This would add to that $60
million, but it would add more than half as much as is currently set
aside for that purpose. It does not seem to be appropriate to take an
amount that is equal to more than half of what is currently set aside
for the entire country for special purpose CDBG, use it without any
regard for eligibility requirements for a particular project, no matter
how worthy in one city, when dozens of other communities that would
have similar projects would not get a chance to do anything similar.
Mr. Chairman, I reserve the balance of my time.
Mr. TRAFICANT. Mr. Chairman, I yield myself such time as I may
consume.
Mr. Chairman, this would not touch one penny of formula money for
community development block grants. It would, in fact, add to community
development block grants special purpose money of $35 million for a
city that is trapped, with the largest senior population outside of
Florida, trapped in homes bordered in, with the highest murder per
capita rate in America, with our kids on the street. It has been
promised by Tip O'Neil, promised by Jim Wright. We had a deficit, and I
did not ask for it.
Mr. Chairman, I want to thank the Republican leadership for showing a
heart to my people who built the tanks, the steels and lost 55,000
steel workers' jobs, replaced by 20 at minimum wage. This is not a
convention center. It is a center for seniors, center for youth, center
for them to have someplace to go besides the streets.
Mr. Chairman, I reserve the balance of my time.

{time} 1400

Mr. FRANK of Massachusetts. Madam Chairman, I yield myself 1 minute.
It was originally described as a convention center, but I should note
that was when we were talking about $15 million. When it was first
raised in the committee, it was $15 million. Now it is $35 million.
Whether or not commitments were made by people now departed, in many
senses, cannot be binding on us today.
The question is, do we set the precedent? I agree that there is a
need here. There is need in much of the country. I would hope the
leadership on both sides would be willing to expand the total amount of
money that could go for CDBG and related purposes. But we just adopted
a budget, which in my judgment underfunds this category. To take $35
million for one community without any kind of process of checking out
of a fixed amount of money that is going to be available in that
allocation seems to me very unwise no matter what was promised 15 years
ago.
Madam Chairman, I reserve the balance of my time.
Mr. TRAFICANT. Madam Chairman, I yield myself 30 seconds. The
gentleman has been misrepresenting the amendment. It does not take any
money from anywhere. It does add $35 million. So instead of building
schools overseas and vaccinating dogs overseas, the Traficant amendment
adds some money for this significant project that Speaker Hastert has
identified as a need. And I commend him.
Madam Chairman, I reserve the balance of my time.
Mr. FRANK of Massachusetts. Madam Chairman, I yield myself 1 minute.
I do not deny that this whole process speaks to a need of the
speaker. I have a pretty good idea of exactly what that need is in the
current political context. But the notion that it does not take from
the other programs is simply wrong. We have a budget. We have 602(b)
allocations. This does not add $35 million to the overall allocation.
It takes out of the allocation that flows from that limited, and I
think inadequate, budget $35 million.
Madam Chairman, I yield 1 minute to the gentlewoman from Florida
(Mrs. Meek).
Mrs. MEEK of Florida. Madam Chairman, I hate to go against my friend
from Ohio, but all day long I have stood on the floor here to go
against people taking a run on CDBG moneys. Even though it is a special
purpose grant, I am pretty sure it is very much needed and deserved, so
it is in all the other districts throughout the country.
We all have needs. I am sure the gentleman from Ohio is expressing
the needs of his area. But I came to say that when we begin to deal
with income and moving income eligibility around and placing new
programs without additional money, we run into trouble. So the special
purpose grants, $35 million, that would fund maybe 25 programs
throughout the country. With that I want to be sure that this amendment
is defeated.
Mr. FRANK of Massachusetts. Madam Chairman, I yield myself such time
as I may consume.
Let me just say, Madam Chairman, that I believe this does give a new
meaning to the phrase ``special purpose.'' I had previously thought
special purpose had to do with the more narrow purposes of community
development block grant. It seems to me that with this $35 million
proposal that the gentleman from Ohio says was specifically approved by
the Speaker, to meet one of the speaker's needs, we are broadening the
purposes beyond what is appropriate for a community development block
grant program.
Madam Chairman, I reserve the balance of my time.
Mr. TRAFICANT. Madam Chairman, I yield myself the balance of my time.
There is only one legislative vehicle for which this amendment is
germane. Without an authorization, there can be no appropriation. When
the bombs were flying, we built those bombs. We built the tanks. When
those steel mills closed, they were my mills. The city is basically
dead. This is also an economic opportunity act.
I do not know what agenda the gentleman from Massachusetts (Mr.
Frank) is pursuing, but this is not Rotary, either. My kids are on the
street. The jobs they get are selling drugs. Then we put them in jails
and build more jails. My seniors are boarding their windows from the
inside, Madam Chairman. I am not taking a dime from anybody. But my
people have paid taxes all these years. Where is the help from
Washington for my people? Is it special purpose? Damn right. It is
special. Stone cold special. And I want your vote. I did not plan to
call for a recorded vote, but evidently the gentleman from
Massachusetts is. I want your vote. I want you to stand up for my
people, my people who have been solidly Democrat all these years. But
by God their Congressman is going to do what he has to do to help his
people. And you are the last appeal I have.
Now, when you built that tunnel up there in Boston and Tip O'Neill
built that tunnel, I did not open my mouth. When that great Tom Bigby
was built, everybody stepped aside. I am not taking a dime from
anybody. This does not cut formula money. And by God I know I may not
get the full $35 million, but I want it all this year, too. I want it
appropriated. I did not come out with no game, no smoke-filled business
and try and sneak it in the bill. I gave the gentleman from
Massachusetts his shot and everybody their shot. By God, I want your
vote.
Henry, I want your vote, I want it early. Chairman Lazio, thank you.
I want your vote, I want it early. Chairman Leach, I want your vote.
Mr. Gephardt, I want your vote. And I want it early. Stephanie, I want
your vote, from Cleveland, and I want it early. Carrie, I want you to
change your position, vote against the gentleman from Massachusetts and
vote with me, and I want you to do it early.
I yield back a decimated city that is looking for help for its last
point of appeal.

[[Page H1919]]

Mr. FRANK of Massachusetts. Madam Chairman, I yield myself the
balance of my time.
Madam Chairman, I want very much to help this city and others. I do
not want to single out one city because of a particular political
situation and provide large funds there when they inevitably come at
the expense of others, because we are in a zero-sum situation. We have
budget caps. We have a limited budget. And money spent on one program
inevitably takes away from other programs.
I wish that we could expand all of the programs. I would be willing
to do it. I understand that the gentleman wants people's vote. I
understand that there are others who want the gentleman's vote. But
that is not what governs. What ought to govern here is public policy.
It is not good public policy in disregard of the basic economic
considerations of CDBG to take a large chunk, and understand the total
amount most recently appropriated for special purposes was $60 million.
This adds to the special purpose. It adds an amount that is more than
half of what had previously existed in that account. It is
disproportionate. It is not that we do not think we should do some of
these things in the much smaller amounts in which we have done them,
but $35 million for one community when we have many needy communities
is a mistake.
The CHAIRMAN pro tempore (Mrs. Emerson). The question is on the
amendment offered by the gentleman from Ohio (Mr. Traficant).
The question was taken; and the Chairman pro tempore announced that
the noes appeared to have it.
Mr. TRAFICANT. Madam Chairman, I demand a recorded vote, and pending
that, I make the point of order that a quorum is not present.
The CHAIRMAN pro tempore. Pursuant to House Resolution 460, further
proceedings on the amendment offered by the gentleman from Ohio (Mr.
Traficant) will be postponed.
The point of no quorum is considered withdrawn.
The CHAIRMAN pro tempore. It is now in order to consider amendment
No. 11 printed in House Report 106-592.

Amendment Offered by Mr. Souder

Mr. SOUDER. Madam Chairman, I offer an amendment.
The CHAIRMAN pro tempore. The Clerk will designate the amendment.
The text of the amendment is as follows:

Amendment No. 11 offered by Mr. Souder:
Page 121, after line 11, insert the following new section:

SEC. 609. GRANT ELIGIBILITY OF COMMUNITY ORGANIZATIONS.

(a) Eligibility.--For any program administered by the
Secretary of Housing and Urban Development under which
financial assistance is provided by the Secretary to
nongovernmental organizations or to a State or local
government for provision to nongovernmental organizations,
religious organizations shall be eligible, on the same basis
as other nongovernmental organizations, to receive the
financial assistance under the program from the Secretary or
such State and local governments, as the case may be, as long
as the program is implemented in a manner consistent with the
Establishment Clause of the first amendment to the
Constitution. Neither the Secretary nor a State or local
government to which such financial assistance is provided
shall discriminate against an organization that receives
financial assistance, or applies to receive assistance, under
a program administered by the Secretary, on the basis that
the organization has a religious character.
(b) Religious Character and Independence.--
(1) In general.--A religious organization that receives
assistance under a program described in subsection (a) shall
retain its religious character and control over the
definition, development, practice, and expression of its
religious beliefs.
(2) AAdditional safeguards.--Neither the Federal Government
nor a State or local government shall require a religious
organization--
(A) to alter its form of internal governance; or
(B) to remove religious art, icons, scripture, or other
symbols;
in order to be eligible to provide assistance under a program
described in subsection (a).
(3) Employment practices.--A religious organization's
exemption provided under section 702 of the Civil Rights Act
of 1964 (42 U.S.C. 2000e-1) regarding employment practices
shall not be affected by its participation in, or receipt of
funds from, programs described in subsection (a).
(c) Limitations on Use of Funds for Certain Purposes.--No
funds provided directly to a religious organization to
provide assistance under any program described in subsection
(a) shall be expended for sectarian worship, instruction, or
proselytization.
(d) Fiscal Accountability.--
(1) In general.--Except as provided in paragraph (2), any
religious organization providing assistance under any program
described in subsection (a) shall be subject to the same
regulations as other nongovernmental organizations to account
in accord with generally accepted accounting principles for
the use of such funds provided under such program.
(2) Limited audit.--Such organization shall segregate
government funds provided under such program into a separate
account. Only the government funds shall be subject to audit
by the government.
(e) Treatment of Eligible Entities and Other Intermediate
Organizations.--If an eligible entity or other organization
(referred to in this subsection as an ``intermediate
organization''), acting under a contract, or grant or other
agreement, with the Federal Government or a State or local
government, is given the authority under the contract or
agreement to select nongovernmental organizations to provide
assistance under the programs described in subsection (a),
the intermediate organization shall have the same duties
under this section as the government.
(f) Definitions.--For purposes of this section:
(1) Financial assistance.--The term ``financial
assistance'' means any grant, loan, subsidy, guarantee, or
other financial assistance, except that such term does not
include any mortgage insurance provided under a program
administered by the Secretary.
(2) Secretary.--The term ``Secretary'' means the Secretary
of Housing and Urban Development.

The CHAIRMAN pro tempore. Pursuant to House Resolution 460, the
gentleman from Indiana (Mr. Souder) and the gentleman from
Massachusetts (Mr. Frank) each will control 10 minutes.
The Chair recognizes the gentleman from Indiana (Mr. Souder).
Mr. SOUDER. Madam Chairman, I yield myself 4 minutes.
First I want to again thank the distinguished gentleman from New York
(Mr. Lazio) for his leadership in the housing bill. Once again he is
reaching out to those who are hurting in this country trying to expand
the base in a creative market-based way, and he has been a tremendous
leader in the housing issue.
Madam Chairman, I rise today to offer this amendment to codify what
HUD is already doing, encouraging faith-based organizations to have a
place at the table in receiving Federal funds to provide social
services. This amendment will simply codify the practice that religious
organizations can compete on the same basis as other grantees for HUD
grants.
In reality, charitable choice started in HUD under Jack Kemp, and
that is really where the first charitable choice efforts came because
many people simply did not care enough to work with the homeless. We
both at the Federal level and the State level were not providing enough
funds for the homeless. Without the charitable-based groups, many of
these people would not have had a place to stay. Thus, we started
charitable choice really inside HUD. It has enjoyed bipartisan support
from this branch.
The House has endorsed charitable choice on five different occasions
as a means of making social programs more effective. I offered an
amendment to give faith-based organizations a role in anti-crime
efforts in the Consequences for Juvenile Offenders Act in 1999. The
House passed that amendment 346-83.
The Fathers Count Act included a charitable choice provision to allow
faith-based organizations to apply for grants through the fatherhood
program. An amendment on the House floor that would have removed the
charitable choice language failed by a vote of 184-238. A form of
charitable choice was also included in the Welfare and Medicaid Reform
Act of 1996 and the Human Services Authorization Act of 1998, both of
which have been signed into law. Finally, the charitable choice
language was most recently included in the Even Start literacy program
passed by the Committee on Education and the Workforce.
It is also noteworthy that the likely nominees of both presidential
parties support charitable choice. Governor George W. Bush has been a
leader in the effort to include religious groups in social programs as
governor of Texas. Vice President Gore has endorsed this practice in
speeches and on his Web site. In fact, the two candidates have been
competing to see who is most for charitable choice and arguing over who
is the most pro-charitable choice.

[[Page H1920]]

Charitable choice makes it clear that religious organizations
receiving Federal funds to provide services may not discriminate
against those who would receive those services. It makes it clear that
they will not be forced to change their identity or the characteristics
which make them unique and effective. These protections include their
religious character, independence and employment practices.
The goal here is to allow faith-based organizations to compete
without handicapping them by eliminating the characteristics which make
them effective in improving lives and restoring communities. I also
want to make it clear that it is supported by the current Secretary of
HUD as it was by Secretary Kemp and as it was by Secretary Cisneros who
was a leader when he was mayor of San Antonio in involving faith-based
organizations.
On HUD's current home site, they talk about the importance of
community and faith-based organizations. In 1997, HUD Secretary Cuomo
initiated a new Center for Community and Interfaith Partnerships
directed by Father Joseph Hacala. In this year's budget, HUD has
requested $20 million for the interfaith housing initiative. Between
the fall of 1999 and the summer of 2000, HUD's Center for Community and
Interfaith Partnerships will host 10 regional conferences, quote,
targeted to the needs of community and faith-based organizations which
Secretary Cuomo has recognized are, quote, the voice of conscience in
the struggle for economic rights.

In reference to those conferences, Secretary Cuomo stated:
``Our challenge is to engage partners in a new way to spurt the
critical housing and community development efforts of community and
faith-based organizations. Government cannot do this alone. Community
and faith-based organizations cannot do this alone. But together, by
combining our strategies, resources and commitment, we can build
communities into law.''
Finally, charitable choice is something that is already being done.
We need to codify it here. I commend Vice President Gore, Governor
Bush, Secretary Cuomo and the previous housing secretaries before him
to realize we cannot solve the housing problems in this country without
charitable organizations.
Mr. FRANK of Massachusetts. Madam Chairman, I yield myself such time
as I may consume. I may not be in opposition. I was hoping to clarify
this. I certainly agree that we should enlist the valuable help of
faith-based organizations in dealing with social problems.
When we first confronted this during my congressional tenure in the
context of child care, I supported full inclusion of churches but I did
have one question and I hope I can engage the gentleman about it.
His amendment, very correctly I believe, says these funds can only be
given if they are in accordance with the establishment clause of the
first amendment. My concern was the omission of the free exercise
clause. Maybe it was unintentional. And I do not necessarily mean to
make a lot out of it, but I have this concern. What about a citizen who
happens to live in the area where the service is being provided to a
religious organization who wishes to avail himself or herself of the
federally funded service who is not religious and does not wish to be?

{time} 1415

Is there a first amendment free exercise protection so that the
citizen who wishes to partake of the program can do so without being
required as a condition of that to undergo certain religious
activities?
Mr. SOUDER. Madam Chairman, will the gentleman yield?
Mr. FRANK of Massachusetts. I yield to the gentleman from Indiana.
Mr. SOUDER. Madam Chairman, we had this debate in the Even Start
debate in the Committee on Education and the Workforce. My
understanding of this, and there are only a couple of exceptions which
we could get into if we wanted to, but in this grant, there would not
be an exception, and that is that one cannot discriminate on who one
covers, nor can one force them to participate in a religious activity.
This would allow a Catholic priest to have his collar on if it is at a
Catholic facility. It would not require them to remove icons, and it
would not require them to hire people who do not share their faith. But
if one is in the neighborhood and one is not a Catholic, they cannot
require one to go to a biblical study, to show up at church, because
there cannot be discrimination against applicants.
Mr. FRANK of Massachusetts. Madam Chairman, I thank the gentleman. It
is nice to have one more affirmation of the fact that wearing a
Catholic collar is not an obstacle to one's performance, whether it is
here as the Chaplain or elsewhere.
I would then ask the gentleman, we do not need to do it now, but as
this bill proceeds and we get to conference, would there be a problem,
and would I ask him to look at adding where he has the establishment
clause, also the free exercise clause. I do not ask him to agree to
that now, but is that something that we could work together on?
Mr. SOUDER. Madam Chairman, will the gentleman yield?
Mr. FRANK of Massachusetts. I yield to the gentleman from Indiana.
Mr. SOUDER. Madam Chairman, working with the gentleman from New York
(Mr. Lazio), the chairman of the subcommittee, I would be happy to
consider that.
Mr. FRANK of Massachusetts. Madam Chairman, reclaiming my time, the
reason I say this, lawyers can be very picky; and if we mention one
thing and do not mention another, the inference can arise that it was
meant to be excluded. So if it had just said first amendment, it would
be different; but where it says the establishment clause, lest be there
an inference that we did not mean the free exercise clause, I would
like to include that. If we could do that, I would be largely
satisfied.
Madam Chairman, how much time do I have remaining?
The CHAIRMAN pro tempore (Mrs. Emerson). The gentleman from
Massachusetts (Mr. Frank) has 7 minutes remaining.
Mr. FRANK of Massachusetts. Madam Chairman, I yield 2 minutes to the
gentleman from Texas (Mr. Edwards).
Mr. EDWARDS. Madam Chairman, if the gentleman from Indiana would not
mind, because this is a terribly significant issue, possibly dealing
with protections of the first amendment of the Constitution, I would
like to be sure I know what we are voting on.
Would funding under the gentleman's amendment be allowed to go to
pervasively sectarian organizations?
Mr. SOUDER. Madam Chairman, will the gentleman yield?
Mr. EDWARDS. I yield to the gentleman from Indiana.
Mr. SOUDER. Yes.
Mr. EDWARDS. Madam Chairman, is the gentleman aware that in 1988 the
Supreme Court made a specific ruling that that is unconstitutional
under the first 16 words of the Bill of Rights? It says, having direct
Federal funding of churches and synagogues and houses of worship is an
infringement upon the first amendment. Is the gentleman aware of that?
Mr. SOUDER. Madam Chairman, will the gentleman yield?
Mr. EDWARDS. I yield to the gentleman from Indiana.
Mr. SOUDER. Madam Chairman, the gentleman is aware, as we debated a
number of times, that there are multiple rulings if it is used to teach
primarily sectarian doctrine. In other words, if you teach religious
doctrine, the courts clearly ruled. However, if one is pervasively
sectarian, but not teaching religious views, the court has ruled in
other cases. That is why we said consistent with the establishment
clause, because it could be challenged.
The fact is, HUD currently gives and has given hundreds of these
grants around the country to pervasively sectarian organizations.
Mr. EDWARDS. Madam Chairman, reclaiming my time, not necessarily to
the First Baptist Church of Waco or to the First Methodist Church of
New York City.
I think Members need to be aware of this. I think it is a shame that
we are given just a handful of minutes to discuss an issue that Mr.
Madison and Mr. Jefferson debated for 10 years in the Virginia
legislature that provided the foundation for the first 16 words of the
Bill of Rights.
Let me ask the gentleman another question. Let us say that it is the
gentleman's intent that dollars go directly

[[Page H1921]]

to churches and houses of worship under this amendment, which eases my
concern, because the Supreme Court would rule that that is
unconstitutional. But let us just say that is the gentleman's intent.
If money goes to a church associated with Bob Jones University next
year under the gentleman's amendment, can that church, can that
religious organization put out a sign saying, using your tax dollars,
no Catholics need apply for a job here?
Mr. SOUDER. Madam Chairman, will the gentleman yield?
Mr. EDWARDS. I yield to the gentleman from Indiana.
Mr. SOUDER. Madam Chair, an orthodox Jewish synagogue could also do
that. The gentleman is trying to demagogue the question.
Mr. EDWARDS. Madam Chairman, reclaiming my time, I am trying to ask
the gentleman a very significant question under the gentleman's
amendment, and let me repeat it.
Next year, would a church associated with Bob Jones University be
able to put out a sign saying, using your tax dollars, no Catholics
need apply here for a job?
Mr. SOUDER. Madam Chairman, if the gentleman will continue to yield,
if Secretary Cuomo or the Secretary of Housing and Urban Development
chose to give it to a place that would discriminate on that basis,
which could include Jewish, Catholic, evangelical, then that could
happen.
Mr. EDWARDS. Madam Chair, reclaiming my time, I would hope Members
who have not paid attention to this amendment that is added at the end
of an otherwise excellent bill will understand that what the gentleman
is saying is that contrary to 200 years of history in this country, the
gentleman wants the American taxpayers' dollars to be used, would allow
them to be used, regardless of intent, to discriminate against people
because of their religious views. I would urge Members to pay attention
to that.
Madam Chairman, I appreciate the gentleman answering that question
honestly. Let me ask the gentleman another question.
Mr. LAZIO. Madam Chairman, will the gentleman yield?
Mr. EDWARDS. Madam Chairman, no, I will not yield at this point. I
would like to ask the gentleman a question, the author of the
amendment, if I could. If we had more time, I would be glad to have a
discussion. I wish we had several hours, if not days of debate on this
church-state issue.
Madam Chairman, let me ask the question. Under the gentleman's
amendment, would the Wiccans be able to apply for Federal tax funding?
Mr. SOUDER. Madam Chairman, will the gentleman yield?
Mr. EDWARDS. I yield to the gentleman from Indiana.
Mr. SOUDER. Madam Chairman, it is unlikely under President Bush that
the witches would get funding.
Mr. EDWARDS. Madam Chairman, reclaiming my time, does the gentleman
understand that the Supreme Court of the United States has given tax-
free status to the Wiccans; and, therefore, they would be protected, as
would the Methodist church, the Baptist church, and the Jewish
synagogue. So would the gentleman admit to the fact that under his
amendment, our Federal tax dollars could go to the Wiccan church to run
a housing program. Is that correct?
Mr. SOUDER. Madam Chairman, if the gentleman will continue to yield,
nonprofit organizations are already covered under the Tax Code, because
under religious freedom in the United States, one is allowed to
exercise freedom of religion. What this does would leave the discretion
to the Department of HUD, as they do currently, to give grants to
faith-based organizations, including African American church units
which currently get the funding in the inter-faith initiative under
Secretary Cuomo.
Mr. EDWARDS. Madam Chairman, reclaiming my time, that is my point, I
say to the Members.
Mr. SOUDER. Madam Chairman, they can get it now under the Democratic
administration.
The CHAIRMAN pro tempore. The time of the gentleman from Texas (Mr.
Edwards) has expired.
Mr. FRANK of Massachusetts. Madam Chairman, I yield 30 seconds to the
gentleman from Texas (Mr. Edwards).
Mr. EDWARDS. Madam Chairman, in 30 seconds, let me debate the first
amendment to the Constitution.
The gentleman has made my point better than I could make it. He is
saying that under ``the Bush administration,'' they would pick out
which religious organization qualifies for Federal tax dollars and
which ones would not. That is exactly what Mr. Madison and Mr.
Jefferson did not want when they founded the basis of the Bill of
Rights. They did not want politicians and government officials deciding
which religious organization receives official government approval and
which ones do not. I would suggest that providing direct Federal tax
dollars to let group discrimination based on religion is a reason to
oppose this amendment.
Mr. SOUDER. Madam Chairman, first I yield myself 30 seconds.
What the gentlemen said was witches were not likely to be funded; but
that is not my decision, and we do not know. But what is true is that
the current administration already makes these decisions in HUD; they
have an entire division that makes these decisions in HUD. They go
through it, it is public review. It has worked tremendously well. It is
one of the only ways to reach poor people, and I am disappointed that a
few people in this House separate themselves from the leadership of
both parties in arguing for charitable choice.
Madam Chairman, I yield 3 minutes to the distinguished gentleman from
Kansas (Mr. Tiahrt).
Mr. TIAHRT. Madam Chair, I thank the gentleman for yielding me this
time.
I just want to say that I think this is a way to provide a wonderful
opportunity to people who do not have a chance to get into
homeownership. There are many avenues that we have available; sometimes
we just focus on the Government providing all of these services. We
have to go through housing and urban development, and we want to cut
off the opportunity for nonprofit organizations and religious
organizations to get involved. But there is a long history in States
like Kansas.
For example, in adoption, we had trouble with adoption through the
State agencies, and they opened it up to a Lutheran organization, the
amount of adoptions increased dramatically, because their heart was in
it. They were able to do more things quicker. That was very beneficial.
If we look back at Wichita, there is a group called Mennonite
Housing. That is a faith-based organization. But if they had access to
these grants, they would do in a larger scale what they are doing
today, and that is taking properties that are less than acceptable
today, that are in poor condition, dilapidated, and through this
organization and through block grants could create opportunity for
people who would not be able to purchase housing. Single mothers,
minority mothers, poor families, people without work that are just
working maybe just a minimum-level job while they are getting some
education or training.
So Mennonite Housing, a faith-based organization, would be, under the
Souder amendment, able to capture some money, take these dilapidated
properties, and then get them into a position or an order for people to
move in. Put new roofs on, new siding, whatever it takes to bring them
up to code, make them livable. It would be a very exciting opportunity
for the people who are too poor right now to be able to afford this
housing on their own.
Now, it is not pushing any faith; there is not going to be any
sermons given here. Mennonite Housing does not do that. They simply
meet the needs of the poor. They let their faith be their actions, and
their actions are taking poor houses in bad condition, and they
refurbish them; and they give them through low-interest loans to people
at a payment that they can make, and they have hope. They have their
own home. They have a wonderful opportunity.
The Souder amendment is going to allow that to expand. It will not be
just limited to private donations; it is going to be an opportunity for
them to apply for these block grants, take large sections and not just
in Wichita, Kansas. It could be in any city across America, large areas
of unclaimed city that has gone to crime, it has gone to drugs. If it
was just brought up to code, new paint, new shingles, new lawn, other

[[Page H1922]]

families would want to move in there and improve the property and
refurbish these cities.
How do we do it? We give faith-based organizations the opportunity to
get block grants to make these houses liveable. So I would ask my
colleagues to support the Souder amendment and let us see if we cannot
do something for the poor.
Mr. FRANK of Massachusetts. Madam Chairman, I yield myself such time
as I may consume.
I would like to have a colloquy with the gentleman from New York or
the gentleman from Indiana. I would just ask, I guess I can mention
this, whether we include language that protected free exercise, i.e.,
no one would be coerced into a religion, whether or not that would
affect the employment issue, and my answer clearly is no.
There are two separate issues that we raised. My colleague from Texas
has raised the employment issue. I may agree with him on that, but it
is a separate one from the free exercise. The free exercise goes to the
question of the citizens not employed by the program, but who would be
participants in it? I am assuming if we did free exercise, that would
cover them. That would then leave unresolved the issue of employment,
but the two would not be affected.
Mr. SOUDER. Madam Chairman, will the gentleman yield?
Mr. FRANK of Massachusetts. I yield to the gentleman from Indiana.
Mr. SOUDER. Madam Chairman, I would agree to such an amendment and
believe it is consistent with what we have been doing all the way along
and consistent with court decisions that we cannot discriminate among
recipients.
Mr. FRANK of Massachusetts. Madam Chairman, I would give unanimous
consent, if we were asking for a modification that added the free
exercise clause, with the understanding that that left unresolved and
untouched to be further debated the employment issue raised by the
gentleman from Texas. The free exercise goes to the beneficiaries;
employment goes to the other section.
Mr. LAZIO. Madam Chairman, will the gentleman yield?
Mr. FRANK of Massachusetts. I yield to the gentleman from New York.
Mr. LAZIO. Madam Chairman, I would like to make a unanimous consent
request, if it is appropriate, to modify the amendment of the gentleman
from Indiana, so that on page 1, line 13, after the reference to the
establishment clause, we also add the free exercise clause.
The CHAIRMAN pro tempore. The Chair requests that the gentleman from
Indiana (Mr. Souder) propound such a unanimous consent.
Mr. FRANK of Massachusetts. Would the gentleman repeat the unanimous
consent request?
Mr. LAZIO. The proposed unanimous consent request, which I believe
now the gentleman from Indiana will make, would be that the amendment
would be modified so that language would be inserted on page 1, line
13, after the phrase ``establishment clause'' to include ``and the free
exercise clause.''
Mr. FRANK of Massachusetts. Madam Chairman, I have no objection.
Mr. SOUDER. Madam Chairman, I would request that that be done.
Mr. FRANK of Massachusetts. Madam Chair, how much time remains?
The CHAIRMAN pro tempore. The gentleman from Massachusetts (Mr.
Frank) has no remaining time.

{time} 1430

Modification to Amendment No. 11 Offered by Mr. Souder

Mr. SOUDER. Madam Chairman, I ask unanimous consent to modify my
amendment.
The CHAIRMAN pro tempore (Mrs. Emerson). The Clerk will report the
modification to the amendment.
The Clerk read as follows:

Modification to Amendment No. 11 offered by Mr. Souder:
Page 1, line 13 of the amendment after ``Establishment
Clause'' insert ``and The Free Exercise Clause''.

The CHAIRMAN pro tempore. Is there objection to the modification?
Mr. EDWARDS. Madam Chairman, I reserve the right to object.
The CHAIRMAN pro tempore. The gentleman from Texas (Mr. Edwards) is
recognized.
Mr. EDWARDS. Madam Chairman, I would like to ask the question, has
the gentleman dealt with the issue in this amendment or other intended
amendment of using Federal tax dollars to discriminate against people
based on their religious faith, or is he just dealing with an addition
to the question of the establishment and the free exercise clauses?
Mr. SOUDER. Madam Chairman, will the gentleman yield?
Mr. EDWARDS. I yield to the gentleman from Indiana.
Mr. SOUDER. I accepted an amendment that in my opinion was already
covered by the bill under the establishment clause, but this clarified
that.
Obviously the gentleman's concern is the guts of my bill, which would
allow faith-based organizations to apply for government grants without
giving up the faith part of their organization.
Mr. EDWARDS. Madam Chairman, let me just clarify a couple of points,
then, under my reservation of objection.
First of all, Madam Chairman, it is meaningless to add to any bill
that ``this bill cannot be inconsistent with the Constitution.'' That
is already implied in the writing of the Constitution. We have no power
to pass a bill that is unconstitutional, so let us not be deluded to
think that somehow that is adding a protection to this bill.
Secondly, I would still point out to all Members who have not been
aware of this that this particular amendment, as I now understand it,
still would allow someone to take Federal tax dollars and put up a sign
saying ``no Catholics need apply here for a job, federally-funded job;
no Jews need apply here for a federally-funded job.''
Is that correct, the gentleman's amendment that we are talking about
does not address the employment discrimination using tax dollars? Or
does the gentleman have a separate amendment that I can see a copy of?
Mr. LaFALCE. Madam Chairman, would the gentleman yield?
Mr. EDWARDS. I yield to the gentleman from New York.
Mr. LaFALCE. Madam Chairman, I do not think there is a difficulty
with the gentleman's amendment now that it has been amended. We have
202 programs, we have Section 8 programs. They go to Jewish
organizations, they go to Catholic organizations, they go to Protestant
organizations right now. They cannot discriminate. They cannot
discriminate and say, you must be a Catholic, you must be Jewish, you
must be a Muslim, you must be a Protestant in order to become a tenant
in this organization.
They do not discriminate, they cannot discriminate, under these laws
with respect to hiring practices, too. I do not think this gentleman's
amendment accomplishes that much, but I do not think it changes
anything. It does not hurt that much, either. I think we are making a
big argument out of a relatively small matter.
Mr. EDWARDS. If I could reclaim my time, then, the difference, and
perhaps the gentleman from New York did not hear the answer of the
gentleman, he said it was his intent with his language----
Mr. SOUDER. Madam Chairman, if the gentleman will yield further, I do
not believe this is relevant to the particular objection. I think he
has raised a separate issue.
Mr. EDWARDS. Madam Chairman, what we are trying to do is clarify what
is in the amendment.
The CHAIRMAN pro tempore. Under the gentleman's reservation of
objection, he has a right to object.
Mr. SOUDER. He is not discussing the particular item under the
objection, Madam Chairman.
Mr. EDWARDS. I am trying to, because there was a discussion between
the gentleman from Massachusetts (Mr. Frank) and the gentleman about
another amendment being accepted on a unanimous basis, and then the
gentleman mentioned this amendment, resolve this. Frankly, this Member
is a bit uncertain as to what amendment we are including here.
I guess, to clarify, this does not have any language dealing with job
discrimination.
To the gentleman from New York (Mr. LaFalce), let me just point out,
in response to his comments on this amendment, the gentleman previously
said it is his intent with this amendment that these Federal dollars go
to pervasively sectarian organizations. That is something that the
Supreme Court ruled in 1998 is unconstitutional.

[[Page H1923]]

I have no problem with faith-based organizations, Catholic Charities,
getting Federal money. I have a huge problem with the Federal
government directly funding the First Catholic Church, the First
Methodist Church, the First Synagogue, or the First Wiccans with direct
Federal money. That has huge implications.
Because the gentleman said ``pervasively sectarian organizations''
get the money, those pervasively sectarian organizations have special
protections under the law where they can discriminate based on
someone's religious faith.
So based on the gentleman's answer, under this bill, even including
this amendment, they could take Federal tax dollars and put up a sign
and say, no Jews, no Catholics, no Christians, no Hindus need apply
here. I think that is incredibly significant.
My problem is that what otherwise is an outstanding bipartisan bill
is complicated now by an issue that frankly we should spend days, not
just moments, debating. I would urge my colleagues to look at what they
are about to vote on. I would urge its rejection.
Madam Chairman, I withdraw my reservation of objection.
The CHAIRMAN pro tempore. Is there objection to the request of the
gentleman from Indiana?
There was no objection.
The CHAIRMAN pro tempore. The modification is accepted.
The gentleman from Indiana (Mr. Souder) is recognized for the balance
of his time, 2\1/2\ minutes.
Mr. SOUDER. Madam Chairman, I will not use the full time.
I merely want to reiterate that for all the hullaballoo here, this is
the same language we had in the juvenile justice bill that passed 346
to 83 with the same language; the same in the Fathers Count, in the
welfare bill, the human services bill. It is what is in the Even Start
bill. It is supported by the current administration, by the previous
HUD Secretaries before this.
It is supported by African-American, Hispanic, Orthodox Jewish,
Catholic, Protestant organizations all over the country that are trying
to deal with the terrible problems of homelessness, of inadequate
housing for the poor.
Without extending Federal dollars, it is going to be very difficult.
Quite frankly, faith-based organizations are not willing to give up
their faith in order to become part of a charitable system. They will
just choose not to participate, as they did for years prior to the
current Secretary of HUD and other Secretaries reaching out to them.
So I think this merely codfies what is already being done. We have
done it in other bills. Quite frankly, it is going to be coming in more
bills, because it is one of the most important things we can do to
extend Federal dollars and involve people whose hearts say they want to
help those who are hurting, and this enables them to do so.
Mr. POMEROY. Madam Chairman, I rise to express my opposition to the
Souder Amendment.
The Souder amendment would allow religious and faith-based
organizations to compete for all federal housing, homeless and
community development programs under the Department of Housing and
Urban Development (HUD). Madam Chairman, I strongly believe that
religious organizations can play a key role in addressing housing needs
throughout our communities and rural areas. However, the legislation
would allow the funding to be funneled directly to the religious
organizations as opposed to going through a private foundation. I
believe it is more appropriate for religious organizations wanting to
administer programs to assist the poor and elderly to establish private
foundations and apply for federal funding. In fact, many religious
organizations have established private foundations like the Catholic
Charities and receive funding through various HUD programs to
administer to the poor and elderly. I believe it is in the best
interest of religious organizations to operate completely independently
of the federal government. This independence provides religious
organizations with certain protections under federal law, and helps
insulate them from government intervention.
Madam Chairman, I believe that the Souder amendment needlessly
tampers with our nation's strong tradition of the protection of
religious institutions from government interference, and I would urge
my colleagues to oppose this amendment.
Ms. PELOSI. Madam Chairman, I rise today to oppose Representative
Souder's amendment. This amendment will violate the constitutional
separation of church and state; weaken important anti-discrimination
civil rights protections; and entangle religious institutions in the
reach of government.
Representative Souder's amendment is damaging because his charitable
choice provision is unconstitutional. It attacks existing
constitutional protections separating church and state. It diverts
taxpayer and government funding to sectarian religious groups who could
then use these funds to facilitate overtly religious activities and
practices. The Constitution does not allow the government to fund
overtly religious or ``pervasively sectarian'' religious organizations.
This is an inappropriate use of government funds.
Representative Souder's amendment is unneeded because the
Constitution does permit the government to fund religious organizations
that are ``nonsectarian'' to pursue non-religious activities and
currently the government funds many of these groups. These groups are
often called religious affiliates. For example, local Catholic
Charities and Jewish Social Services groups that receive federal
funding are non-sectarian groups.
The differences between non-sectarian religious organizations and
pervasively sectarian religious organizations are very important and we
must continue to respect these differences. Sectarian groups may
proselytize, discriminate by religion, and advance religious beliefs.
For these reasons, the government can not provide funds directly to a
sectarian church or synagogue. We would not want employers which
receive government funds to refuse to hire Jewish or Catholic employees
on the basis of their religion. This would be wrong. We would not want
organizations that receive government funds to proselytize the Mormon
faith to non-Mormons who seek social services. We do not want
government funded organizations to discriminate in their social service
delivery against gays and lesbians; unmarried couples living together;
or to practice other discriminatory practices.
Both non-sectarian and sectarian religious groups do good work, and
this work deserves our support. Nonetheless, taxpayer and government
funds should not subsidize sectarian religious activities nor violate
the separation of church and state. Let us remember, that under current
law, pervasively sectarian religious groups are permitted to form an
affiliate organization and this affiliate is eligible to apply for
federal funding. I urge my colleagues to vote for the Constitution and
oppose the Souder amendment.
Mr. SOUDER. Mr. Chairman, many of the Constitutional issues relevant
to the Charitable Choice debate were discussed in an excellent article
by Carl Esbeck in the Emory Law Review, which follows:

A Constitutional Case for Governmental Cooperation With Faith-Based
Social Service Providers ^d
---------------------------------------------------------------------------

Footnotes appear at the end of article.
---------------------------------------------------------------------------
It is often said that America's founding was an experiment
in government. Certainly few features of the American
constitutional settlement left more to future change--and
were more of a break with existing European patterns--than
the Establishment Clause set out in the First Amendment. The
new Republic sought to rely on transcendent principles to
justify its unpre-cedented advancements in human liberty.\1\
Concurrently, the Founders rejected any official or fixed
formulation of these principles, for no public credo was to
be established by law. So it is more than just a little
ironic that the nation's most cherished human rights depend
upon the continued private faith of innumerable Americans in
creeds and confessions that themselves cannot be officially
adopted by the Republic, lest the adoption run afoul of the
prohibition on laws respecting an establishment of religion.
Yet, coming full circle, it is this ``no-establishment
principle'' that allows voluntary religion to flourish, which
in turn nurtures belief in God-endowed rights.\2\ The
resulting juggling act is what Dr. Os Guinness aptly
describes as the still ``undecided experiment in freedom, a
gravity-defying gamble that stands or falls on the dynamism
and endurance of (the Republic's) unofficial faiths.'' \3\
This ongoing experiment in human liberty, because of its
indeterminacy, has had the unforeseen effect of concentrating
intense pressure on a single constitutional restraint on
governmental power, namely the Establishment Clause. To the
uninitiated, having the cause of this pressure pinpointed
goes far toward explaining why the no-establishment principle
has become one of the chief battle sites over who exercises
cultural authority in this nation.\4\ Quite simply, the
Establishment Clause has become where Americans litigate over
the meaning of America.\5\ Thus, it is to the Establishment
Clause that we rightly devote so much of our attention and
energy.
The United States Supreme Court's modern jurisprudence
concerning church/state relations is commonly dated from its
1947 decision in Everson v. Board of Education,\6\ which
embraced a separationist interpretation of the Establishment
Clause. Since Everson, the Court begins with separatistic
assumptions when addressing novel question that invokes the
no-establishment principle. The separationism theory has
become so dominant that today, fifty years after

[[Page H1924]]

Everson, courts assume a need to justify holdings that reach
results not easily fitting into Jefferson's influential
metaphor (``a wall of separation'') as allowable departures
from the rule first laid down in Everson.
This article will refer to separationism as based on
``older assumptions.'' The Court's presuppositions concerning
the nature and contemporary value of religion and the proper
role of modern government underlie what will be referred to
as a ``traditional analysis'' of the case law. Part I is a
partial overview of the Supreme Court's cases since Everson,
and has the goal of making the strongest arguments--within
the framework of separationism--for the constitutionality of
governmental welfare programs that permit participation by
faith-based social service providers.
Part II is about separationism's major competitor, a theory
centered on the unleashing of personal liberty to the end
that, with minimal governmental interference, individuals
make their own religious choices. The theory has come to be
called the neutrality principle.\7\ Neutrality theory
surfaced most obviously in 1981 when the Supreme Court handed
down its decision in the free speech and religion case of
Widmar v. Vincent.\8\ Religious neutrality as a model for
interpreting the Establishment Clause is based on what will
be termed ``new assumptions.'' The aim of the new assumptions
is to minimize the effects of governmental action on
individual or group choices \9\ concerning religious
belief and practice. When the dispute is over a welfare
program in which faith-based social service providers
desire to participate, the neutrality principle requires
government to follow a rule of minimizing the impact of
its actions on religion, to wit: all service providers may
participate in a welfare program without regard to
religion and free of eligibility criteria that require the
abandonment of a provider's religious expression or
character. Thus, Part II consists of a realignment of the
Supreme Court's cases along a new axis, with the goal of
making the strongest arguments--within the framework of
these new assumptions--for the constitutionality of
governmental programs of aid which permit full and equal
participation by faith-based social service providers.
Before turning to the case law, it should be stated
candidly and up front that there is no truly neutral position
concerning these matters, for all models of church/state
relations embody substantive choices. The decisions the
Supreme Court handed down in both Everson and Widmar are not
otherwise. Separationism is a value-laden judgment that
certain areas of the human condition best lie within the
province of religion, while other areas of life are properly
under the authority of civil government. Separationism, this
most dominant of theories, is in no sense the inevitable
product of objective reason unadulterated by an ideological
commitment to some higher point of reference. Separationism
cannot stand outside of the political and religious milieu
from which it emerged and honestly claim to be neutral
concerning the nature and contemporary value of religion or
the purposes of modern government. The same must be said for
its primary competitor, the neutrality theory.\10\ Indeed, to
demand that any theory of church/state relations transcend
its pedigree or its presuppositions and be substantively
neutral is to ask the impossible.\11\

i. older assumptions: separationism and a traditional analysis of the
case law

The Supreme Court distinguishes between the direct \12\ and
the indirect \13\ receipt of a government's welfare
assistance by social service providers. ``Indirect'' welfare
assistance means that a personal choice by the ultimate
beneficiary--rather than by the government--determines which
social service provider eventually receives the assistance.
Indirect forms of assistance will be discussed first because
the current state of the case law is more easily sorted out.
The Court has consistently held that government may design
a welfare program that places benefits in the hands of
individuals, who in turn have freedom in the choice of
service provider to which they take their benefits and
``spend'' them. It makes no difference whether the chosen
provider is governmental or independent, secular or
religious. Any aid to religion as a consequence of such a
program only indirectly reaches--and thereby only indirectly
advances--the religion of a faith-based provider. In
situations of indirect assistance, the equal treatment of
religion--no separationism--is the Court's operative rule for
interpreting the Establishment Clause. As will be shown
below, this rule of equality is instrumental to neutrality
theory.\14\
The leading cases are Mueller v. Allen,\15\ Witters v.
Washington Department of Services for the Blind,\16\ and most
recently Zobrest v. Catalina Foothills School District.\17\
Even the more liberal Justices on the Court have acceded to
the direct/indirect distinction.\18\
The rationale for this distinction is twofold. First, the
constitutionally salient cause of any indirect aid to
religion is entirely in the control of independent actors,
not in the hands of the government. So long as individuals
may freely choose or not choose religion, merely enabling
private decisions logically cannot be a governmental
establishment of religion. The government is essentially
passive as to the relevant decision, and hence not the agent
of any resulting religious use. Second, the indirect nature
of the aid, channelled as it is through countless individual
beneficiaries, reduces church/state interaction and any
resulting regulatory oversight. This enhances the
nonentanglement that is so desirable from the perspective of
the Establishment Clause.
There are a number of familiar programs that illustrate
this rule: individual income tax deductions for contributions
to charitable organizations, including those that are
religious; \19\ and G.I. Bill \20\ and other federal aid to
students attending the college or university of their
choice, including those affiliated with a church; \21\
federal child care certificates for low-income parents of
preschool-age children; \22\ and state-issued vouchers
permitted under the Temporary Assistance for Needy
Families program.\23\ Pursuant to this rule of law,
vouchers given to welfare beneficiaries that are
redeemable by any eligible provider, whether governmental
or independent, secular or religious, would be
constitutional.\24\
It bears emphasizing that the programs of aid upheld in
Mueller, Witters, and Zobrest were adopted as a matter of
legislative discretion or prudence. These cases do not hold
that there is a constitutional right to equal treatment
between governmental and independent sector providers.
Government may decide that these indirect benefits are
redeemable at its welfare agencies alone,\25\ thereby
excluding all similarly situated independent sector
providers. Should a state decide to provide assistance only
through government-operated agencies, it can do so without
violating the First Amendment. The caveat is that a state
cannot adopt a program of aid that involves all providers of
welfare services, governmental and independent sectors, but
specifically disqualified participation by religious
providers. The Free Exercise Clause prohibits any such
intentional discrimination against religion.\26\
Unlike indirect forms of assistance, when it comes to
direct assistance--that is, a government's general program of
assistance flows directly to all organizations, including
faith-based providers of services--then separationism is the
Court's beginning frame of reference. Separationism makes
three assumptions. First, it assumes that a sacred/secular
dichotomy accurately describes the world of religion and the
work of faith-based providers called to minister among the
poor and needy. That is to say, the activities of faith-based
providers can be separated into the temporal and the
spiritual. This assumption, of course, is vigorously
challenged by neutrality theorists.\27\ Second, separatists
assume that religion is private and that it should not
involve itself with public matters, with ``public'' often
equated to ``political'' or ``governmental'' affairs. The
neutrality principle rejects this private/public dichotomy as
well, insisting that personal faith has public consequences
and that the practice of religious faith can lead to
cooperation with the government in achieving laudable public
purposes.\28\ Third, separatists assume that a government's
welfare assistance equates to aid for the service provider.
Neutrality theories contest this characterization as well,
describing the situation as one of cooperation between
government and independent sector providers, with the joint
aim being society's betterment through the delivery of aid to
the ultimate beneficiaries.\29\
As a general proposition, the Supreme Court has said that
direct forms of reimbursement can be provided for the
``secular'' services offered by a religious organization but
not for those services comprising the group's ``religious''
practices. Thus, if an organization's secular and religious
functions are reliably separable, direct assistance can be
provided for the secular function alone. But if they are not
separable, then the Court disallows the assistance
altogether, with the explanation that the Establishment
Clause will not allow the risk \30\ of governmental aid
furthering the transmission of religious beliefs or
practices.
The juridical category the Court utilizes to determine
whether a general program of direct assistance risks
advancing religion is whether the provider is ``pervasively
sectarian.'' \31\ Should the provider fit the profile of a
pervasively sectarian organization, then separationist theory
prohibits any direct aid to the provider. The one small
exception is aid that, due to its form or nature, cannot be
converted to a religious use. For example, the Court has
allowed independent religious schools to receive government-
provided secular textbooks and bus transportation between a
student's home and school.\32\
All the Supreme Court's cases striking down direct programs
of aid have involved primary and secondary faith-based
schools.\33\ Contrariwise, in each of the three instances
that have come before the Court involving direct aid to
colleges and universities, including those which are faith-
related, the Court has upheld the financial aid.\34\ The
Court received considerable criticism--even ridicule--for the
close distinctions it has made in religious school cases
between the types of permissible and impermissible aid.
However, for present purposes these distinctions are best
seen as fact-finding quibbles over whether the Court rightly
determined if the nature of a particular direct benefit can
be converted to a religious and, therefore, forbidden use.
On the two occasions the Court has considered the
constitutionality of social service direct aid programs, it
has sustained both programs. In a turn of the century case,
Bradfield v. Roberts,\35\ the Court upheld a

[[Page H1925]]

capital improvement grant for a church-affiliated
hospital.\36\ At present, however, Bowen v. Kendrick \37\ is
the modern and hence more pertinent case. By the narrow
margin of five to four, the Court in Kendrick upheld ``on its
face'' federal grants for teenage sexuality counseling,
including counseling offered by faith-related centers.
However, the Court remanded for a case-by-case or ``as
applied'' review in order that teenage counseling centers
found to be pervasively sectarian would have their grants
discontinued.\38\
Under the Adolescent Family Life Act (AFLA),\39\ the
Secretary of Health and Human Services authorizes direct cash
grants to both governmental and independent sector nonprofit
organizations doing research or providing services in the
areas of teenage pregnancy and counseling for adolescents
concerning premarital sexual relations. Accordingly, the
societal problems addressed by AFLA are a blend of health,
economic, and moral issues surrounding teenage sexuality and
out-of-wedlock pregnancy. The statute defines an eligible
grant recipient as a ``public or non-profit private
organization or agency,'' apparently permitting otherwise
qualified religious organizations to receive the grants on
the same terms as nonreligious agencies.\40\ Moreover,
language in the Act expressly invites participation by
religious organizations and requires certain secular grantees
to take into account involvement by religious organizations,
along with family and community volunteer groups, in
addressing the problem of adolescent sexuality.\41\ These
provisions were written into the law to ensure that religious
groups would be treated in a nondiscriminatory manner when
compared with other similarly situated eligible grant
recipients. No statutory language specifically barred the use
of grant monies for worship, prayer, or other intrinsically
religious activities. Finally, other than routine fiscal
accountability to ensure that federal funds were not
misappropriated, no monitoring or other oversight was made
part of the resulting relationship between the Department of
Health and Human Services and the participating religious
organizations.\42\
After describing the broad outlines of AFLA, the majority
spoke in sweeping terms of the Establishment Clause and
governmental aid as permitting an equality-based rule. It
said that ``religious institutions need not be quarantined
from public benefits that are neutrally available to all,''
\43\ and that ``this Court has never held that religious
institutions are disabled by the First Amendment from
participating in publicly sponsored social welfare
programs.'' \44\ The Court then went on to utilize the three-
prong Lemon test for its analysis.\45\
Concerning Lemon's first prong, requiring that legislation
have a secular purpose, the contending parties in Kendrick
agreed ``that, on the whole, religious concerns were not the
sole motivation behind the Act.'' \46\ As usual, the Court's
application of the purpose test was highly deferential to the
legislature.
Lemon's second prong requires that the principal or primary
effect of a law not advance religion. There was nothing
``inherently religious'' or ``specifically religious,''
pointed out the Court, about the activities or social
services provided by the grantees to adolescents with
premarital sexuality questions and problems.\47\ Moreover,
simply because AFLA expressly required religious
organizations to be considered among the available grantees
and demanded that the role of religion be taken into account
by secular grantees, that did not have the effect of
endorsing a religious view of how to solve the problem.\48\
As to grantee eligibility, the Court interpreted AFLA as
``religion-blind'' when Congress required that all
organizations, secular and religious, be considered on an
equal footing. Further, the legislation did not violate the
Establishment Clause merely because religious beliefs and the
moral values urged by AFLA overlap.\49\ Critical to the
result was that the majority refused to hold that faith-based
teenage counseling centers were necessarily pervasively
sectarian.\50\ Although the form of the assistance was a
direct cash grant, the First Amendment was not offended as
long as the grantee was not pervasively sectarian.\51\ The
fact that the ultimate beneficiaries were impressionable
adolescents did not, without more, present an unacceptable
risk that the no-establishment principle was violated.\52\
Although AFLA did not expressly bar the use of federal funds
for worship, prayer, or other inherently religious
activities, the Court said no explicit bar was required. The
Court added, however, that ``(c)learly, if there were such a
provision in this statute, it would be easier to conclude
that the statute on its face'' was constitutional.\53\
Under the third prong of Lemon, the Court considers whether
the statute in question fosters an excessive administrative
entanglement between religious officials and the offices of
government. Monitoring of AFLA grantees by the Department of
Health and Human Services is necessary only to ensure that
federal money is not misappropriated. There is no requirement
that faith-based grantees follow any federal guidelines
concerning the content of the advice given to teenagers or
otherwise modify their programs. There are no
nondiscrimination requirements as to the beneficiaries
served. Because religious grantees are not necessarily
pervasively sectarian, the majority concluded that this
limited oversight by the federal agency could not be deemed
excessively entangling.\54\
Dividing the analysis between ``facial'' and ``as applied''
components places a considerable burden on separationists,
like the legal activists behind the Kendrick litigation, who
rove the country filing suits claiming Establishment Clause
transgressions. The aim of these activists is to halt the
government aid, not on a piecemeal or case-by-case basis, but
by enjoining the entire Act insofar as it allows any
participation by faith-based providers. This was possible
when the Court was willing to overturn legislation on the
mere ``risk'' that the second of third prongs of Lemon were
violated.\55\ After Kendrick, a violation of the
Establishment Clause must be proved in each case by palpable
evidence that confessional religion is being advanced. The
only exception occurs when the entire class of religious
service providers is pervasively sectarian. Because not all
faith-based social service providers are pervasively
sectarian, a facial attack will fail.
In a short concurring opinion, Justice O'Connor drew a
helpful distinction. She noted that the object of
congressional funding under AFLA, namely the moral issue of
teenage sexuality, was ``inevitably more difficult than in
other projects, such as ministering to the poor and the
sick.'' \56\ Far easier cases, she opined, would be welfare
programs funding faith-based soup kitchens or hospitals.\57\
Accordingly, where the object of the governmental aid is
clearly addressed to temporal needs (e.g., food, clothing,
shelter, health), in Justice O'Connor's view, a social
service program that includes religious providers is facially
constitutional.\58\
For the Court to require officials to distinguish between
``pervasively'' and ``non-pervasively'' sectarian
organizations creates a fundamental inconsistency within its
own doctrine. The Court had earlier held in Larson v. Valente
\59\ that the Establishment Clause requires that government
not intentionally discriminate among types of religions,\60\
nor should government utilize classifications based on
denominational or sectarian affiliation.\61\ Moreover, in
order to distinguish between ``pervasively'' and ``non-
pervasively sectarian'' organizations, as Kendrick requires,
courts will become deeply entangled in the religious
character of these faith-based providers of social
services.\62\ The Supreme Court, however, has said that
whenever possible officials should avoid making detailed
inquiries into religious practices, or probing into the
significance of religious words and events.\63\
Justice Kennedy, sensing analytical difficulty with
Establishment Clause doctrine whose application requires the
Court to discriminate among religious groups, wrote a brief
concurring opinion.\64\ Stating that he doubted whether ``the
term `pervasively sectarian' is a well-founded juridical
category,'' \65\ Justice Kennedy went on to adopt a
neutrality-based rule. A social assistance program would be
facially constitutional, Kennedy said, as long as its purpose
was neutral as to religion and a diverse array of
organizations were eligible to participate.\66\ Upon remand
of the case, for Justice Kennedy the ``question in an as-
applied challenge is not whether the entity is of a religious
character, but how it spends its grant.'' \67\ As long as the
grant is actually used for the designated public purpose--
rather than to advance inherently religious beliefs or
practices--there is no violation of the Establishment
Clause.\68\ This proposal has the virtue of not violating the
rule set down in Larson.
In laying down its rules concerning programs of direct
assistance, the Supreme Court has adopted a funds-tracing
analysis rather than a freed-funds analysis. That is, the
Court interprets the Establishment Clause as forbidding the
direct flow of taxpayer funds, as such, to pay for inherently
religious activities. The Court does not concern itself when
governmental funding of a faith-based provider's secular
activities thereby frees private dollars to spend on
religious activities. In a pervasively sectarian
organization, however, in which the mixing of religious and
secular activities is complete, the tracing of taxpayer funds
will always determine that religious activities are advanced
in tandem with the secular. Hence, in a pervasively
sectarian organization even a funds-tracing analysis
causes the Court to hold that no taxpayer funds can go
directly to such organizations.
The harm that separationists fear is not that privately
raised dollars are freed as a consequence of the government's
program so that they may be reallocated to a religious use.
Rather, the feared harm is that governmental monies
(collected as taxes, user fees, fines, sale of government
property, etc.),\69\ may be used to pay for such inherently
religious activities as worship, prayer, proselytizing,
doctrinal teaching, and devotional scriptural reading.
Indeed, separationists on the Court have been most insistent
that the Establishment Clause ``absolutely prohibit(s)
government-financed or government-sponsored indoctrination
into the beliefs of a particular religious faith.'' \70\
Although it will scandalize separationists, the rest of us
are led to probe below the bluff and bluster and ask the
following: ``Is the harm resulting from government-collected
monies going to religion so self-evident and severe?'' As
citizens we are taxed to support all manner of policies and
programs with which we disagree. Tax dollars pay for weapons
of mass destruction that some believe are evil. Taxes pay for
abortions and the execution of capital offenders, that some
believe are acts of murder. Taxes pay the salaries of public
officials whose policies we despise and oppose at every
opportunity. Why is religion

[[Page H1926]]

different? If the answer is that we are protecting a
religiously informed conscientious right not to have one's
taxes go toward the support of religion, the Supreme court
has already rejected such a claim.\71\ It makes no difference
to the Court that a taxpayer avers that he or she is
``coerced'' or otherwise ``offended'' when general tax
revenues are used in a program that involves faith-based
social service providers.\72\ Accordingly, with reference to
the Court's interpretation of the Establishment Clause, it
must again be asked, ``Is the harm that separationists would
have us avoid at all cost so self-evident and severe?
Although a thorough treatment of this question is beyond
the scope of this Article, the answer separationists give is
that there are two such harms which the Establishment Clause
is designed to safeguard against, and history demonstrates
that they can be quite severe: first, divisiveness within the
body politic along sectarian lines; \73\ and, second, the
damage to religion itself by the undermining of religious
voluntarism and the weakening of church autonomy.\74\
Separationism has yet to give a convincing argument that
these two harms will befall the nation as a result of the
equal involvement of faith-based providers in social service
programs. The harm of sectarian divisiveness within the body
politic is not altogether different in kind or more
threatening than tax funding for other ideologies and
programs that citizens find disagreeable.\75\ And the harm to
religion itself when too closely allied with government,
while real and threatening, can be adequately protected by
writing into the welfare legislation safeguards for
protecting the religious character and expression of faith-
based providers.\76\

ii. new assumptions: a paradigm shift to governmental neutrality

Neutrality theory approaches the debate over the
Establishment Clause from an altogether different point of
entry. According to this theory, when government provides
benefits to enable activities that serve the public good,
such as education, health care, or social services, there
should be neither discrimination in eligibility based on
religion, nor exclusionary criteria requiring these charities
to engage in self-censorship or otherwise water down their
religious identity as a condition for program
participation.\77\ The neutrality model allows individuals
and religious groups to participate fully and equally with
their fellow citizens in America's public life, without being
forced either to shed or disguise their religious convictions
or character. The theory is not a call for preferential
treatment for religion in the administration of publicly
funded programs.\78\ Rather, when it comes to participation
in programs of aid, neutrality merely lays claim to the same
access to benefits, without regard to religion, enjoyed by
others.\79\ Finally, as noted above,\80\ the neutrality
principle rejects the three assumptions made by separationist
theory: that the activities of faith-based charities are
severable into ``sacred'' and ``secular'' aspects, that
religion is ``private'' whereas government monopolizes
``public'' matters, and that governmental assistance paid to
service providers is aid to the providers as well as aid to
the ultimate beneficiaries.
Should separationism eventually be dislodged from its place
as the controlling paradigm, it will be said that this change
began in 1981 with the Supreme Court's decision in Widmar v.
Vincent.\81\ In Widmar, a state university permitted student
organizations to hold their meetings in campus buildings when
the facilities were not being used for other purposes.
However, student religious organizations were specifically
denied such access. The university maintained that the denial
was required because it could not support religion by
providing meeting space for worship, prayer, and Bible study,
consistent with a no-aid interpretation of the Establishment
Clause. A group of students brought suit, first pointing out
that the university had voluntarily created a limited public
forum generally open to student expression. Having dedicated
the forum, the students argued that expression of religious
content could not be singled out for discrimination. A near-
unanimous Supreme Court agreed. Most significantly, the Court
held that the Establishment Clause did not override the Free
Speech Clause as long as the creation of the forum had a
secular purpose. Religious groups were just one of many
student organizations permitted into the forum. As long as
the circumstances were such that the university did not
appear to be placing its power or prestige behind the
religious message, the Establishment Clause was not a
problem.\82\
The Widmar approach was soon dubbed ``equal access,'' and
in 1984 Congress extended the same equality-based right to
students enrolled in governmental secondary schools.\83\
Following recent free speech victories in Lamb's Chapel v.
Center Moriches Union Free School District,\84\ Capitol
Square Review and Advisory Board v. Pinette,\85\ and
Rosenbergr v. Rector and Visitors of the University of
Virginia,\86\ equal treatment has indeed become the normative
rule of law concerning private speech of religious content or
viewpoint.\87\ As discussed below, this equality-based rule
is instrumental to neutrality theory.\88\
Notwithstanding this unbroken line of victories for the
equal treatment of religion, it must be emphasized that in
each case from Widmar to Rosenberger, it was the Free Speech
Clause that required nondiscrimination, thereby supplying the
victory. It remains to be explored below whether the
neutrality principle can make the transition from an equality
right in free speech to a right of equal participation in
direct financial aid programs.\89\
Before continuing with the argument for neutrality theory
based on the most recent Supreme Court cases, a digression is
necessary to address the rationale for grounding the major
competitor to separationism in the juridical concept of
governmental neutrality rather than equality. As it turns
out, a rule of equality works quite well when the church/
state dispute is over access to benefits.\90\ However, when
the Establishment Clause challenge is to legislation that
exempts religious organizations from regulatory burdens,\91\
the normative rule of law continues to follow a separationist
model. Accordingly, when the issue is relief from government-
imposed burdens, religious groups want to be viewed not as
equal to others, but as separate and unique.
As a juridical concept, neutrality integrates into a single
coherent theory both (1) allowing religious providers equal
access to benefits, and (2) allowing them separate relief
from regulatory burdens. The rationale entails distinguishing
between burdens and benefits.
The Supreme Court has repeatedly held that the
Establishment Clause is not violated when government refrains
from imposing a burden on religion, even though that same
burden is imposed on the nonreligious who are otherwise
similarly situated. Corporation of Presiding Bishop v. Amos
\92\ is the leading case. Amos upheld an exemption for
religious organizations in federal civil rights legislation.
The exemption permitted religious organizations to
discriminate on a religious basis in matters concerning
employment. Finding that the exemption did not violate the
Establishment Clause, the Court explained that ``it is a
permissible legislative purpose to alleviate significant
governmental interference with the ability of religious
organizations to define and carry out their missions.'' \93\
When the Court permits a legislature to exempt religion from
regulatory burdens, it enables private religious choice.
The Court's rationale is twofold. First, to establish a
religion connotes that a government must take some
affirmative step to achieve the prohibited result.
Conversely, for government to passively ``leave religion
where it found it'' logically cannot be an act establishing a
religion.\94\ Referencing the First Amendment's text, the
words ``shall make no law'' \95\ imply the performance of
some affirmative act by government, not maintenance of the
status quo. Stating the practical sense of the matter,
Professor Laycock observed that ``(t)he state does not
support or establish religion by leaving it alone.'' \96\
Second, unlike benefit programs, religious exemptions
reduce civil/religious tensions and minimize church/state
interactions, both matters that enhance the
nonentanglement so desired by the Establishment
Clause.\97\
Should the Court in the future permit a legislature to
design welfare programs that confer direct assistance without
regard to religion, it would be following a rule of equal
treatment as to religion. However, exemptions from burdens
and equal treatment as to benefits have a common thread that
ties the two together. In following an equality-based rule as
to benefits, equality is not an end in itself but a means to
a higher goal. That goal is the minimization of the
government's influence over personal choices concerning
religious beliefs and practices. The goal is realized when
government is neutral as to the religious choices of its
citizens. Thus, whether pondering the constitutionality of
exemptions from regulatory burdens or of equal treatment as
to benefit programs, in both situations the integrating
principle is neutralizing the impact of governmental action
on personal religious choices.\98\ From that common axis, it
makes sense to agree with the Court's holding, in cases such
as Amos, that religious exemptions from legislative burdens
are consistent with the Establishment Clause, and, on the
other hand, to insist that the Establishment Clause permits
the equal treatment of religion when it comes to financial
benefits.\99\
It would be rhetorical, but still a fair comment, to say
that in neutrality theory religion gets the best of both
worlds: religion is free of burdens borne by others but
shares equally in the benefits.\100\ However, this
observation is not an argument against the neutrality
principle but a commendation of it. No one need apologize for
a model of church/state relations that maximizes religious
liberty (subject, of course, to the reasonable demands of
organized society) and limits the power of the modern
regulatory state. This combination of liberty and limits is
what the First Amendment is about. It was the First
Amendment, after all, that expressly singled out religion as
an attribute of human nature that called for special
treatment.
Previously mentioned were two cases handed down by the
Court in late June of 1995: Capitol Square Review and
Advisory Board v. Pinette,\101\ and Rosenberger v. Rector and
Visitors of the University of Virginia.\102\ They represent
the Court's most recent pronouncements on the Establishment
Clause. Notably, the two newest appointees to the Court,
Justices Ginsburg and Breyer, were members of the Court by
then and heard both cases.
The prima facie claim in both of these cases was that
private religious speech was

[[Page H1927]]

denied equal access to a public forum, in violation of the
Free Speech Clause. The Court agreed. Further, in both cases
the government sought to justify its discriminatory treatment
of religious speech as being compelled by the Establishment
Clause. A majority of the Justices rejected this defense.
Hence, the result in both cases is more consistent with a
theory of neutrality than of separationism.
In Pinette, the Ohio Ku Klux Klan sought a permit to place
a display consisting of a Latin cross in Capitol Square, a
public area surrounding the statehouse. The square was
otherwise open for private displays sponsored by a variety of
citizen groups. The State denied the permit, claiming that
the cross would be viewed as an endorsement of religion in
violation of church/state separation.\103\
By a vote of seven to two the Court sided with the Klan.
All of the Justices in the majority believed that placement
of the cross by a private group was not barred by the
Establishment Clause. However, these seven Justices generated
four opinions, none of which commanded a five-vote majority
concerning the application of the Establishment Clause to
these facts.
Justice Scalia, joined by Chief Justice Rehnquist and
Justices Kennedy and Thomas, believed that the exclusion of a
private religious symbol from a public forum could never be
justified by the Establishment Clause. Long-standing free
speech doctrine required that there be no discrimination as
to content, and religious speech was not to be singled out
for special scrutiny. The mere fact that onlookers might view
a religious display and mistake it for the message of the
state was no reason to suppress private speech. Rather,
the solution to the problem of the mistaken observer is
not to suppress the speech, but to correct the erroneous
conclusion concerning the source of the message. So long
as the government treats all speakers equally and does
nothing to intentionally foster the onlooker's mistake,
the government has done all that the establishment Clause
requires.\104\
Justice O'Connor wrote separately about the mistaken
observer.\105\ Applying an endorsement test, Justice O'Connor
said that in some instances the Establishment Clause imposed
a duty on the state to take steps to disclaim sponsorship of
a private religious message.\106\ In her view, a government's
formal equality toward religion may not always be enough. In
circumstances in which, for example, private religious
messages ``so dominate a public forum that a formal policy of
equal access is transformed into a demonstration of
approval'' in the eyes of an objective observer, the
Establishment Clause requires the state to take affirmative
measures to see to it that religion is not advanced.\107\
Justice Souter, joined by Justices O'Connor and Breyer,
write separately about the inadequacy of facial equality.
Justice Souter agreed that equal treatment of religion should
narrowly prevail on these facts. However, this was because
his concern for the appearance of state endorsement of
religion could be remedied by requiring the affixing of a
sign to the cross disclaiming official sponsorship. Such a
disclaimer, of course, would be required only when the
content of the speech is religious. Hence, the appropriate
response, in Justice Souter's opinion, is not a facially
neutral policy. Rather, the law ought to respond to private
religious speech as a ``handle with care'' item. In Justice
Souter's view, an access rule that is nondiscriminatory in
purpose is required of the state, but by itself is
insufficient. ``Effects matter to the Establishment Clause.''
\108\ The tone and content of Justice Souter's opinion left
little doubt that in his view church/state separation, rather
than even-handed treatment, is the dominant concern of the
First Amendment.
Justices Stevens and Ginsburg dissented in separate
opinions. Justice Stevens believed that the Establishment
Clause created ``a strong presumption against the
installation of unattended religious symbols on public
property.'' \109\ Thus, in his view separationism
subordinates the Free Speech Clause and its rule of equal
treatment.
Justice Ginsburg was even more extreme, articulating not a
presumption but an absolute rule of religious expulsion. She
was of the opinion that ``(i)f the aim of the Establishment
Clause is genuinely to uncouple government from church,''
then ``a State may not permit, and a court may not order, a
display of this character.'' \110\ As authority for this
absolutist separationism, Justice Ginsburg cited a law review
article. The article is openly hostile to the contributions
of traditional religion and urges that it be driven out of
the public square.\111\ It is deeply disturbing that Justice
Ginsburg, in her first opinion concerning religion as a
Supreme Court Justice, would cite with approval this article
with its brutish regard for religion and religious
expression.
In Rosenberger,\112\ decided the same day as Pinette, a
university-recognized student organization published a
newspaper known as Wide Awake. The newspaper ran a number of
stories on contemporary matters of interest to students such
as racism, homosexuality, eating disorders, and music
reviews, all from an unabashedly Christian perspective.\113\
The university provided student newspapers work space and
paid the expenses of printing these publications. The
printing costs were paid from a fund generated by a student
activity fee.\114\ The university refused to reimburse the
cost of printing Wide Awake. The refusal was pursuant to a
policy disqualifying printing costs for groups promoting ``a
particular belief in or about a deity or ultimate reality.''
\115\ The student sued, claiming this was yet another
instance of discrimination against private religious speech
in violation of the Free Speech Clause. The university sought
to justify its discriminatory treatment as required by a no-
aid interpretation of the Establishment Clause.\116\
By a vote of five to four, the Court ruled in favor of the
students and directed the university to treat Wide Awake the
same as other student publications, without regard to the
newspaper's religious perspective. Justice Kennedy wrote the
majority opinion, and was joined by Chief Justice Rehnquist
and Justices O'Connor, Scalia, and Thomas. Justice Kennedy
determined that the university had created a limited public
forum for student expression on a wide array of topics.\117\
Further, the denial of student activity funds to pay for the
cost of printing Wide Awake was discrimination on the basis
of the newspaper's Christian viewpoint concerning topics
otherwise permitted in the forum.\118\ The university's
policy denied funding not because Wide Awake was a
religious organization, but because of its religious
perspective.\119\ Justice Kennedy also rejected the
argument that providing student groups with a scarce
resource such as money differed from providing abundant
resources such as classroom meeting space. Whether
abundant or in limited supply, the university could not
dispense its resources on a basis that was viewpoint-
discriminatory.\120\
Justice Kennedy went on to reject the university's argument
that providing direct funding for a newspaper with a
religious perspective was prohibited by the Establishment
Clause. In so doing, Justice Kennedy stated a rule of law
consistent with neutrality theory, although he added that
compliance with a neutrality rule was a significant factor--
but not itself sufficient--in finding that the Establishment
Clause was not violated:
A central lesson of our decisions is that a significant
factor in upholding governmental programs in the face of
Establishment Clause attack is their neutrality towards
religion. . . . (I)n enforcing the prohibition against laws
respecting establishment of religion, we must be sure that we
do not inadvertently prohibit the government from extending
its general state law benefits to all its citizens without
regard to their religious belief. . . . We have held that the
guarantee of neutrality is respected, not offended, when the
government, following neutral criteria and evenhanded
policies, extends benefits to recipients whose ideologies and
viewpoints, including religious ones, are broad and
diverse.\121\
Continuing, Justice Kennedy assessed both the purpose and
``practical details'' of the university's program. The
university's purpose was clearly not the advancement of
religion. The student activity fee was to promote a wide
variety of speech of interest to students. Hence, the fee was
unlike an earmarked tax for the support of religion.\122\ As
to the ``practical details'' that augured in favor of
constitutionality, Justice Kennedy noted that state funds did
not flow directly into the coffers of Wide Awake; rather, the
newspaper's outside printer was paid by the university upon
submission of an invoice.\123\ Further, Justice Kennedy noted
that Wide Awake was a student publication, ``not a religious
institution, at least in the usual sense of that term as used
in our case law, and it is not a religious organization as
used in the University's own regulations.'' \124\
Although she joined the majority opinion, Justice O'Connor
had greater difficulty concluding that the Establishment
Clause was not transgressed on these facts. As between
separatistic and neutrality models, she declared that
Rosenberger did not elevate neutrality as the new paradigm:
The Court's decision today therefore neither trumpets the
supremacy of the neutrality principle nor signals the demise
of the funding prohibition in Establishment Clause
jurisprudence.\125\
Accordingly, separationism appears to be Justice O'Connor's
starting point in cases involving direct funding of religious
organizations. However, she found several mitigating details
which on balance satisfied her that providing assistance in
this case did not carry the danger of governmental funds'
endorsing a religious message. First, university policies
made it clear that the ideas expressed by student
organizations, including religious groups, were not those of
the university. Second, the funds were disbursed in a manner
that ensured monies would be used only for the university's
purpose of maintaining a robust marketplace of ideas.
Finally, Justice O'Connor noted the possibility that students
who objected to their fees going toward ideas they opposed
might not be compelled to pay the entire fee.\126\
In addition to joining the majority opinion, Justice Thomas
wrote separately to criticize the historical account in
Justice Souter's dissent. Justice Thomas agreed with Justice
Souter that history indicated that the Founders intended the
Establishment Clause to prevent earmarking a tax for the
support of religion.\127\ However, the equal participation of
religious and nonreligious groups in a direct-aid program
funded out of general tax revenues was never an issue faced
by the founding generation.\128\ Hence, in Justice Thomas's
view, it is not prohibited by the Establishment Clause.
Justice Souter dissented, joined by Justices Stevens,
Ginsburg, and Breyer. Concerning a direct-aid program funded
by public monies, Justice Souter stated that any

[[Page H1928]]

such program was unconstitutional if it used public monies
to support religion.\129\ Hence, the four dissenting
Justices followed a separatistic model.
Justice Souter severely criticized Justice Kennedy's
opinion insofar as it made distinctions based on certain
factual peculiarities of the case: The funds going directly
to the printer, not to the publication; the funds originating
from student fees, not taxes; and the newspaper not being a
religious organization, although it espoused overtly
religious beliefs.\130\ The ``practical details'' section of
Justice Kennedy's opinion does appear to focus on minutiae.
These are indeed chimerical distinctions on which the
Establishment Clause is seemingly made to turn. In fairness
to Justice Kennedy, however, he may have been forced into
these rationalizations in order to keep Justice O'Connor with
the majority. She supplied the crucial fifth vote. But if
keeping Justice O'Connor from separately concurring explains
Justice Kennedy's attention to ``practical details,'' it came
at a high price: Officials and judges who do not like the
result in Rosenberger have plenty of fine distinctions to
manipulate so as to confine the case's holding narrowly to
its facts.
In summary, concerning the constitutionality of general
programs of direct aid, from Pinette and Rosenberger we learn
that presently four Justices are prepared to allow a rule of
neutrality, four Justices remain entrenched in separationism
as their theory, and Justice O'Connor is the swing vote.
Although it is clear that facial neutrality alone is
insufficient, Justice O'Connor was unwilling to commit to any
broader statement of general legal principles. It must be
conceded that her instinct in these cases is not to begin
with neutrality theory, but to follow a weak version of
separationism.\131\ She starts with a presumption of no aid,
but then advises weighing the totality of the circumstances.
If the legislation is facially neutral as to religion, if the
program is administered so that there is no appearance of
official endorsement of religion, and if there are sufficient
safeguards against the welfare program's functioning as a
subterfuge for channeling tax monies to support religion,
then she will allow a rule of neutrality.\132\
In Rosenberger, as in Widmar, Lamb's Chapel, and Pinette,
it was the Free Speech Clause that compelled the equal
treatment of religion.\133\ In the absence of the free speech
claim, there was no indication the Court would have
required--as a matter of constitutional right--that religion
be treated equally in welfare programs. It is uncertain
whether the Court will do so.\134\ All that can be said with
assurance is that should a legislature choose to treat
religion in a nondiscriminatory manner when designing a
program of aid, then a slim majority of the present Court
will uphold the aid. Accordingly, religious social service
providers have no certainty of equal treatment, but it is
permitted.\135\
As we look at the progression from Widmar to Rosenberger in
terms of the Court's attitude toward enabling personal
religious choice, there is a logical continuum. The Court has
moved toward neutralizing government's impact on religious
belief and practice. In Widmar, the Establishment Clause was
not violated when the government provided a direct benefit in
the form of reserved meeting space (classrooms, heat, and
light) because of the larger public purpose at issue--
enriching the marketplace of ideas. In Rosenberger, the
Establishment Clause was not violated when the government
provided a direct benefit in the form of funding (paid
printing costs) for the same reason as in Widmar--the larger
public purpose of enriching the marketplace of ideas. Both
the classroom space and payment of printing costs were
valuable benefits to which a sum certain could be assigned.
Free access to other forms of valuable direct benefits easily
come to mind: Bulletin boards, photocopy machines, computers
for word processing and e-mail, facsimile machines,
organizational mailboxes, organizational office space, and
even something as common as use of a telephone. All of these
direct benefits when provided to a wide variety of student
organizations, including organizations that are either
religious or have religious viewpoints, would be permitted by
the Widmar/Rosenberger interpretation of the Establishment
Clause.
Indeed, there is no logical stopping place as the
circumstance evolves from funding private expression without
regard to religion to funding a social program without regard
to religion. The essential requisite, as far as the
Establishment Clause is concerned, is that in the case of
expression, the creation of the public forum have a public
purposes. In the case of a social service program, its
enactment must have a public purpose as well.
The general principle of law that emerges is that the
Establishment Clause is not violated when, for a
public purpose, a program of direct aid is made available
to an array of providers selected without regard to
religion. In recently enacting the Church Arson Prevention
Act,\136\ Congress made use of this principle. Section
4(a) of the Act enables nonprofit organizations exempt
under S 501(c)(3) of the Internal Revenue Code, which are
victims of arson or terrorism as a result of racial or
religious animus, to obtain federally guaranteed loans
through private lending institutions.\137\ This of course
means churches can obtain the necessary credit to repair
or rebuild their houses of worship at reduced rates. This
Act, quite sensibly, treats churches the same as all
similarly situated exempt nonprofit organizations. The
public purpose is to assist the victims of crime. The
federal guarantee represents a form of direct aid to
religion, but because the aid is neutrally available to
all 501(c)(3) organizations, it does not violate the
Establishment Clause.
In the context of welfare legislation, the public purpose
is for government and the independent sector to engage in a
cooperative program that addresses the temporal needs of the
ultimate beneficiaries,\138\ and to do so in a manner that
enhances the quality or quantity of the services to those
beneficiaries. If some of the providers happen (indeed, are
known) to be religious, and in the course of administering
their programs they integrate therein religious beliefs and
practices, that is of no concern to the government. As long
as the beneficiaries have a choice as to where they can
obtain services, thereby preventing any religious coercion of
beneficiaries, and as long as the public purpose of the
program is met,\139\ the government's interest is at an
end.\140\
For a welfare program to have a public purpose, more is
required than that the program merely be facially neutral as
to religion.\141\ The legislation must have as its genuine
object the pursuit of the good of civil society. Permissible
public purposes encompass health (including freedom from
addictions), safety, morals, or meeting temporal needs, such
as shelter, food, clothing, and employment.
Unlike separationism, in neutrality theory it makes no
difference whether a provider is ``pervasively sectarian'' or
whether the nature of the direct aid is such that it can be
diverted to a religious use.\142\ Most importantly, the
courts no longer need to ensure that governmental funds are
used exclusively for ``secular, neutral, and nonideological
purposes'' \143\ as opposed to worship or religious
instruction. Neutrality theory eliminates the need for the
judiciary to engage in such alchemy.
For faith-based providers to retain their religious
character, programs of aid must be written to specially
exempt them from regulatory burdens that would frustrate or
compromise their religious character. Not only is this
essential to attracting their participation, but it is in the
government's interest for these providers to retain the
spiritual character so central to their success in
rehabilitating the poor and needy.\144\ The line of cases
typified by the holding in Amos gives assurance that the
adoption of such exemptions do not violate the Establishment
Clause.\145\
In neutrality theory it might be asked, ``Just what is left
of the Establishment Clause?'' The answer is, ``Quite a
lot!'' In addition to the several applications noted
elsewhere in this Article,\146\ the Establishment Clause
continues to prohibit the government from adopting or
administering a welfare program out of a purpose that is
inherently religious.\147\ For example, the no-establishment
principle does not permit as the object of legislation the
pursuit of worship, religious teaching, prayer,
proselytizing, or devotional Bible reading.\148\
Characterizing the purpose of a program of aid as
``nonsectarian'' or ``secular'' should be avoided, for that
just clouds the issue. Mere overlap between a statutory
purpose and religious belief or practice does not, without
more, make the legislation unconstitutional.\149\ Finally,
although the Establishment Clause does require a public
purpose, the neutrality principle is not concerned with
unintended effects among religions. Accordingly, the
Establishment Clause is not offended should a general program
of aid affect, for good or ill, some religious providers more
than others,\150\ as long as any disparate effect is
unintentional.\151\
State constitutions also address the matter of church/state
relations, sometimes in terms that are more separatistic than
the Supreme Court's interpretation of the Establishment
Clause.\152\ A program of aid that successfully navigates the
First Amendment can nonetheless go aground on claims based on
state constitutional law. However, if the welfare program is
federal or federal revenues are shared with the states, then
these state constitutions can be preempted by Congress.

Conclusion

As one facet of the nation's overall effort to reform
welfare, it is imperative to increase the involvement of the
independent sector in the delivery of government-assisted
social services. A significant part of the voluntary sector
presently engaged in social work consists of faith-based
nonprofit organizations. Indeed, these religious charities
are some of the most efficient social service providers, as
well as among the most successful, measured in terms of lives
permanently changed for the better.\153\ Although some faith-
based providers have been willing to participate in
government-assisted programs, many are wary about involvement
with the government because they rightly fear the debasing of
their religious characters and expression.\154\ Consequently,
what is needed is legislation that invites the equal
participation of faith-based organizations as social service
providers, while safeguarding their religious character,
which is the very source of their genius and success.
Achieving this goal will require change in how Americans
conceive of the role of modern government, which fortunately
is already underway. For starters, the activity of government
must not be thought of as monopolizing the ``public.''
Rather, civil society

[[Page H1929]]

is comprised of many intermediate institutions and
communities that also serve public purposes, including the
independent sector of nonprofit faith-based providers.
Further, independent sector providers that opt to
participate in a government welfare program are not in any
primary sense to be regarded as ``beneficiaries'' of the
government's assistance. Rather, it is those who are the
ultimate object of the social service program--the hungry,
the homeless, the alcoholic, the teenage mother--who are the
beneficiaries of taxpayer funds. As they deliver services to
those in need with such remarkable efficiency and
effectiveness, faith-based providers, along with others in
the voluntary sector, give far more in value, measured in
societal betterment, than they could possibly receive as an
incident of their expanded responsibilities. This is not a
case of tax dollars funding religion.
Rightly interpreted, the Establishment Clause does not
require that faith-based providers censor their religious
expression and secularize their identity as conditions of
participation in a governmental program. So long as the
welfare program has as its object the public purpose of
society's betterment--that is, help for the poor and needy--
and so long as the program is equally open to all providers,
religious and secular, then the First Amendment requirement
that the law be neutral as to religion is fully satisfied.
Neutrality theory has the additional virtue of eliminating
existing ``conflict'' among the clauses of the First
Amendment. By not discriminating between ``pervasively'' and
``non-pervasively sectarian'' organizations, the Court's
interpretation of the Establishment Clause is brought into
line with the rule of Larson v. Valente \155\ prohibiting
intentional discrimination among religious groups, and avoids
as well excessive inquiry into the character of religious
organizations.\156\ By not discriminating in favor of secular
organizations over religious organizations through the
funding of only the former, the Court's interpretation of the
Establishment Clause is brought into line with the rule of
Church of the Lukumi Babalu Aye, Inc. v. City Hialeah \157\
prohibiting intentional discrimination against religion. And
by not discriminating against private religious speech in
either content or viewpoint, the Court's interpretation of
the Establishment Clause is in line with longstanding free
speech doctrine as adhered to in Rosenberger. The
separationist view that when in ``conflict,'' the
Establishment Clause subordinates the Free Exercise and Free
Speech Clauses has heightened religious tensions over
political matters. Contrariwise, the neutrality principle
promises to reduce political factionalism along religious
lines.
As First Amendment law evolves away from separationism and
in the direction of neutrality theory, it is inevitable that
there will be setbacks. But the neutrality principle has
about it the march of an idea, one that is compelling because
it unleashes liberty, limits government, and reinvigorates
citizen involvement at the neighborhood level. For the sake
of America's poor and needy, we can only hope that the
Supreme Court's full embrace of neutrality will come soon.
^d This Article was first presented at a workshop
on the Constitutionality of Governmental Cooperation with
Religious Social Ministries on August 2-3, 1996, at
Washington, D.C., sponsored by the Religious Social-Sector
Project of the Center for Public Justice.
^a Isabelle Wade & Paul C. Lyda Professor of Law,
University of Missouri-Columbia. B.S., Iowa State University
of Science & Technology, 1971; J.D., Cornell University,
1974.
\1\ The Declaration of Independence, for example, refers to
these transcending principles as ``self-evident truths,''
``Creator-endowed inalienable rights,'' and ``the laws of
nature and of nature's God.'' These higher law principles did
not necessarily rest upon a common confession of revealed
truth. For some among the Founders, the principles were
derived from a faith in reason. But the reliance on
transcendent principles, whether extrapolated from reason or
revelation, did mean agreement at the level of the moral
basis for political action. See, e.g., John G. West, Jr., The
Politics of Revelation & Reason: Religion & Civic Life In The
New Nation (1996):
The Founders eliminated the problem of dual allegiance to
God and government by removing God from the authority of the
government. . . .
This solution to the theological-political problem in
theory, however, required a major corollary to work in
practice: a belief that church and state would agree on the
moral basis of political action. . . . Only if church and
state can agree on the moral standard for political action
can (subjugation of religion to state or vice versa) be
avoided. In other words, reason (the operating principle of
civil government) and revelation (the ultimate standard for
religion) must concur on the moral law for the Founders'
solution to work.
The Founders, of course, agreed with this proposition. . .
. This conceit that reason and revelation agreed on the moral
law so permeated the Founding era that the modern reader may
miss it because authors of the period more often assumed this
proposition than demonstrated it. When citing authority for
fundamental propositions, writers of the Founding era
appealed to both reason and revelation as a matter of course.
Id. at 74-75.
\2\ See, for example, James Madison's letter wherein he
observes how the Virginia churches had greatly expanded in
number and reputation since disestablishment. Letter to
Edward Livingston (July 10, 1822), in 3 Letters and Other
Writings of James Madison, Fourth President of the United
States 273, 276 (1865) (``(in) Virginia. . . . religion
prevails with more zeal and a more exemplary priesthood than
it ever did when established. . . . Religion flourishes in
greater purity without, than with the aid of Government'').
That keenest of observers, Alexis de Tocqueville, sketched
this delicate balance in operation during his visits to the
America of the 1830s:
Religion, which never intervenes directly in the government
of American society, should . . . be considered as the first
of their political institutions. . . .
I do not know if all Americans have faith in their
religion--for who can read the secrets of the heart?--but I
am sure that they think it necessary to the maintenance of
republican institutions. That is not the view of one class or
party among the citizens, but of the whole nation; it is
found in all ranks.
For the Americans the ideals of Christianity and liberty
are so completely mingled that it is almost impossible to get
them to conceive of the one without the other. . . .
The religious atmosphere of the country was the first thing
that struck me on arrival in the United States. The longer I
stayed in the country, the more conscious I became of the
important political consequences resulting from this novel
situation.
In France I had seen the spirits of religion and of freedom
almost always marching in opposite directions. In America I
found them intimately linked together in joint reign over the
same land. My longing to understand the reason for this
phenomenon increased daily. To find this out, I questioned
the faithful of all communions. . . . I found that (American
Catholic priests) all . . . thought that the main reason for
the quiet sway of religion over their country was the
complete separation of church and state. I have no
hesitation in stating that throughout my stay in America I
met nobody, lay or cleric, who did not agree about that.
Alexis de Tocqueville, Democracy In America 269-72 (J.P.
Mayer & Max Lerner, eds., Harper & Row 1966).
\3\ Os Guinness, The American Hour: A Time of Reckoning and
the Once and Future Role of Faith 18-19 (1993).
\4\ See Stephen L. Carter, The Culture of Disbelief: How
American Law and Politics Trivialize Religious Devotion
(1993); James Davison Hunter, Culture Wars: The Struggle to
Define America (1991).
\5\ Some have puzzled as to why broad coalitions, like that
behind the Religious Freedom Restoration Act of 1993, 42
U.S.C. Sec. Sec. 2000bb to 2000bb-4 (1994), can come together
over the meaning of the Free Exercise Clause but not the
Establishment Clause. The Free Exercise Clause is about
protecting religiously informed conscience, especially
freedom for religious minorities to continue practices that
are out of step with the general culture. Most everyone who
cares about religion agrees on the desirability of protecting
these matters. This is not the case, however, with the
Establishment Clause. Where the stakes are high, as in the
culture wars, there can be little coalition building between
social liberals and social conservatives or between
theological liberals and theological conservatives.
\6\ 330 U.S. 1 (1947). While narrowly upholding a state law
permitting local authorities to reimburse parents for the
cost of transporting children to school, including church-
related institutions, the rhetoric and historical method
adopted by the Court in Everson were separatistic.
\7\ See e.g., Rosenberger v. Rector & Visitors of the Univ.
of Va., 115 S. Ct. 2510, 2528 (1995) (O'Connor, J.,
concurring) (contrasting the ``neutrality principle'' with
the ``funding prohibition'' view of the Establishment
Clause); Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S.
687, 704 (1994) (``(The (neutrality) principle is well
grounded in our case law, as we have frequently relied
explicitly on the general availability of any benefit
provided religious groups or individuals in turning aside
Establishment Clause challenges.'') Bowen v. Kendrick, 487
U.S. 589, 624 (1988) (Kennedy, J., concurring)
(characterizing a social service program open to a diverse
array of organizations neutral as to religious and
nonreligious applicants).
\8\ 454 U.S. 263 (1981). Widmar held that the Free Speech
Clause, with its requirement that there be no content-based
discrimination, is not overridden by the Establishment
Clause. Id. at 271-75. Accordingly, a state university was
prohibited from denying a student religious organization the
same access to facilities provided to other student
organizations, thereby permitting the students to meet, pray,
sing, and worship on campus.
\9\ Religious choices by an individual believer or by a
religious group are not differentiated in this Article.
Individual rights are akin to the group rights of a church or
religious denomination as long as the organization can show
injury-in-fact to the purposes or activities of the group
itself, or when the organization has third-party standing to
assert a rights claim on behalf of its members pursuant to
the three-part test set out in Hunt v. Washington State Apple
Advertising Commission, 432 U.S. 333, 343 (1977).
\10\ The term ``neutrality'' can mislead readers into
believing that the theory claims to be substantively neutral.
It is not. The theory is neutral only in the sense that
government minimizes its role in influencing the

[[Page H1930]]

religious choices of its citizens, thereby leaving persons
free to make these choices for themselves, Government does
so, for example, by structuring its social welfare programs
to give citizens wide choices, with religious choices being
among the available selections.
To further confuse matters, courts and commentators
sometimes use ``equal'' as a substitute for ``neutral,'' See,
e.g., Stephen V. Monsma & J. Christopher Soper, eds., Equal
Treatment of Religion in a Pluralist Society (forthcoming
1997). In this context, ``neutrality'' and ``equality'' are
intended to convey the same meaning. Whether termed the
``neutrality principle'' or ``equal-treatment review,'' the
theory stakes out substantiative positions as to the nature
and contemporary value of religion and the purposes of modern
government. The theory places a great deal of importance on
the religious impulse in human nature. And the theory assigns
to government a minimal role in directing religion, seeking
to limit government to addressing the reasonable
regulatory needs for the protection of organized society.
\11\ One of the conceits of modernism is that humankind
acting alone, through reason and scientific observation, can
determine universal truths, the Jewish and Christian
traditions will test any such ``universals'' against the
special revelation of Scripture. Postmodernists, like
observant Jews and traditional Christians, dismiss the
professed objectivity or claimed neutrality of modernists as
arrogant pretensions. Without embracing the rest of their
philosophy, religionists can agree with postmodernists that
human reason--and hence one of its products, the positive
law--is contingent on time, place, perception, and culture.
See generally Stanley J. Grenz, A Primer on Postmodernism
(1966); Gene Edward Veith, Jr., Postmodern Times: A Christian
Guide to Contemporary Thought and Culture (1994). Thus, when
engaging the church/state debate, observant Jews and
traditional Christians may be disarmingly candid and lose
nothing in the bargain by conceding that there is no neutral
theory concerning the proper interpretation of the
Establishment Clause. Rather, the question for Jews and
Christians is to determine which theory of church/state
relations most nearly comports with the biblical image of
life's purpose, as well as the proper role of the political
community.
\12\ Direct forms of assistance come not just as payments
on specified-use grants or purchase-of-service contracts, but
in a variety of other forms as well; high-risk loans, low-
interest loans, and government-guaranteed loans; tax-exempt
low-interest bonds for capital improvements; insurance at
favorable premiums; in-kind donations of goods such as used
furniture or surplus food; free use of government property,
facilities, or equipment; free assistance by government
personnel to perform certain tasks; free instruction,
consultation, or training by government personnel; and
reduced postal rates. Office of Management and Budget,
Executive Office of the President, Catalog of Fed. Domestic
Assistance xv-svi (29th ed. 1995). The catalog lists and
defines 15 types of federal assistance. As classified by the
General Services Administration, federal benefits and
services are provided through seven categories of financial
assistance (grants, insurance, donated property, etc.) and
eight categories of nonfinancial assistance (training,
counseling, supplying technical literature, investigation of
complaints, etc.). Id. See also Douglas J. Besharov, Bottom-
up Funding, in To Empower People: From State to Civil Society
124 (Michael Novak ed., 2d ed. 1996) (comparing the strengths
and weaknesses that arise when funding comes directly and
indirectly from government).
\13\ Indirect forms of assistance include: individual
income tax credits and deductions; student scholarships,
fellowships, and guaranteed loans; and educational vouchers
and federal child care certificates. Indirect assistance can
be further divided. Vouchers and scholarships, for example,
are types of indirect aid where the immediate source of the
benefit is the government. On the other hand, indirect
benefits such as tax credits and deductions are examples of
so called ``bottom-up'' aid, in which the immediate source of
aid is private. The government's role in connection with this
second type of indirect assistance is to facilitate the flow
of aid by rewarding the private source after the fact. The
distinction between these two types of indirect assistance
may enter into certain policy debates and decisions made by
legislators. However, the Supreme Court has not made use of
this distinction for purposes of interpreting the
Establishment Clause.
\14\ See infra notes 90-100 and accompanying text.
\15\ 463 U.S. 388 (1983) (upholding a state income tax
deduction conferred on school parents to assist in their
children's tuition and other educational expenses).
\16\ 474 U.S. 481 (1986) (upholding a state vocational
grant program to finance a blind individual's training at a
sectarian school to obtain a degree to enter a religious
vocation).
\17\ 509 U.S. 1 (1993) (providing an interpreter to a deaf
student attending a parochial high school does not violate
the Establishment Clause). Even Everson v. Board of Educ.,
330 U.S. 1 (1947), which upheld a state law allowing local
governments to provide reimbursement to parents for the
expense of transporting their children by bus to school,
including to parochial schools, can also be characterized as
having subscribed to this direct/indirect distinction.
\18\ See Rosenberger v. Rector & Visitors of the Univ. of
Va., 115 S. Ct. 2510, 2541 (1995) (Souter, J., dissenting,
writing for himself and Justices Stevens, Ginsburg, and
Breyer) (acknowledging the rule applied in Mueller, Witters,
and Zobrest.
\19\ See 26 U.S.C. Sec. Sec. 170, 501(c)(3)(1994).
\20\ 38 U.S.C. Sec. Sec. 3201-3243 (1994).
\21\ See, e.g., Federal Pell Grants, 20 U.S.C. Sec. 1070a
(1994); 34 C.F.R. Sec. 690.78. An eligible student for a Pell
grant is defined in 20 U.S.C. Sec. 1091 (1994). Students may
utilize their grant at an institution of higher education
(Sec. 1088) or other eligible institution (Sec. 1094).
Church-affilated colleges and universities are not excluded.
\22\ The Child Care and Development Block Grant Act of
1990, 42 U.S.C. Sec. Sec. 9858-9858q (Supp. 1996). The Act
allows parents receiving child care certificates from the
government to obtain child care at a center operated by a
church or other religious organization, including a
pervasively sectarian center. Id. at Sec. Sec. 9858n(2),
9858k(a), 9859c(c)(2)(A)(i)(I).
\23\ See Sec. 104(j) of the Personal Responsibility and
Work Opportunity Reconciliation Act of 1996, 42 U.S.C.
Sec. 604a (1996 Supp.). Section 104 is known by the popular
name of ``Charitable Choice.'' Charitable Choice permits
states to involve faith-based providers in the delivery of
welfare services funded by the federal government though
block grants to the states. Where the form of the assistance
is indirect, such as by means of certificates or vouchers,
the faith-based providers are not restricted as to their
religious activities.
\24\ To be sure, care must be exercised in the design of
the welfare program. If only voluntary sector providers are
eligible and if most of these providers are faith-based, then
the case law may support overturning the program as having a
primary religious effect. See Committee for Pub. Educ. v.
Nyquist, 413 U.S. 756 (1973) (striking down a state
educational program that was designed to aid only nonpublic
schools); Similar to Nyquist is Sloan v. Lemon, 413 U.S. 825,
833-35 (1973) (holding unconstitutional a state tuition
reimbursement plan available only to parents of nonpublic
school students).
Because the plan in Nyquist excluded government schools,
Nyquist is distinguishable from Mueller, Witters, and
Zobrest. See Durham v. McLeod, 192 S.E.2d 202 (S.C. 1972),
dismissed for want of a substantial federal question, 413
U.S. 902 (1973) (decided on the same day the Court decided
Nyquist). In Durham, the state court had upheld a student
loan program wherein students could attend the college of
their choice, religious or nonreligious. The Supreme Court
apparently approved. Likewise, the Court in Nyquist said that
educational assistance provisions such as the G.I. Bill do
not violate the Establishment Clause even when some GIs
choose to attend church-affiliated colleges. 413 U.S. at 782
n.38 (leaving open the option of ``some form of public
assistance (e.g., scholarships) made available generally
without regard to the sectarian/nonsectarian, or public/
nonpublic nature of the institution benefited'').
\25\ See Norwood v. Harrison, 413 U.S. 455, 462 (1973);
Everson v. Board of Educ., 330 U.S. 1, 16 (1947) (dictum);
Brusca v. State Bd. of Educ., 332 F. Supp. 275 (E.D. Mo.
1971), aff'd mem., 405 U.S. 1050 (1972).
\26\ Church of the Lukumi Babalu Aye, Inc. v. City of
Hialeah, 508 U.S. 520 (1993); McDaniel v. Paty, 435 U.S. 618
(1978).
Should such case ever arise, separationists will argue that
there is a compelling interest in overriding the Free
Exercise Clause, namely the ``no aid'' interpretation of the
Establishment Clause. There are no Supreme Court cases on
this precise point. However, the recent case of Rosenberger
v. Rector & Visitors of the Univ. of Va., 115 S. Ct. 2510
(1995), did uphold direct aid to a publication with an
overtly religious viewpoint. The Establishment Clause was
found not to prohibit the direct funding. Hence, compliance
with the Clause was not a compelling governmental interest.
See infra notes 112-30 and accompanying text.
A recent case in the Sixth Circuit, citing Church of the
Lukumi, held that the U.S. Army violated the Free Exercise
Clause when it excluded religious but not secular child care
providers from operating on its bases and receiving various
direct benefits. Hartman v. Stone, 68 F.3d 973 (6th Cir.
1995). The appeals court went on to hold that the
governmental assistance did not advance or endorse religion
in violation of the Establishment Clause. In all respects,
Hartman appears to have correctly applied Supreme Court
precedent.
\27\ The Court has constructed a society in which faith-
based providers deliver their welfare services within
discrete and clearly defined boundaries easily segregated
from the provider's religious beliefs and practices. For a
thorough debunking of the Court's sacred/secular dichotomy,
see Laura Underkuffler-Freund, The Separation of the
Religious and the Secular: A Foundation challenge to First
Amendment Theory, 36 Wm. & Mary L. Rev. 837 (1995).
\28\ In neutrality theory, the activities of ``government''
do not monopolize the ``public.'' At present--as well as
historically--faith-based charities comprise a large number
of the available voluntary sector social service providers,
and they operate many of the most efficient and successful
programs. As long as the government's welfare program
furthers the public purpose of society's betterment--that is,
helping the poor and the

[[Page H1931]]

needy--it is neutral as to religion if the program involves
faith-based providers on an equal basis with all others.
\29\ In neutrality theory, the independent sector providers
of social services who opt to participate in a government's
welfare program are not in any primary sense
``beneficiaries'' of the government's assistance. Because
they deliver services to those in need, faith-based providers
give far more in valve measured by societal betterment than
they could possibly receive as an incident of their expanded
responsibilities.
\30\ The Court has not always required proof of actual
advancement of religion. In certain instances, the mere
presence of such a risk or hazard has been sufficient to
strike down the aid program. See Grand Rapids Sch. Dist. v.
Ball, 473 U.S. 373, 385, 387 (1985); Wolman v. Walter, 433
U.S. 229, 254 (1977); Meek v. Pittenger, 421 U.S. 349, 370,
372 (1975); Levitt v. Committee for Pub. Educ., 413 U.S. 474,
480 (1973); cf. Bowen v. Kendrick, 487 U.S. 589, 610-12
(1988).
\31\ The meaning of the term ``pervasively sectarian'' can
be gleaned from the cases. In Roemer v. Board of Public
Works, 426 U.S. 736, 758 (1976) (plurality opinion), the
Court turned back a challenge to a state program awarding
noncategorical grants to colleges, including sectarian
institutions that offered more than just seminarian degrees.
In discussion focused on the fostering of religion, the Court
said: (T)he primariy-effect question is the substantive one
of what private educational activities, by whatever
procedure, may be supported by state funds. Hunt (v. McNair,
413 U.S. 734 (1973)) requires (1) that no state aid at all go
to institutions that are so ``pervasively sectarian'' that
secular activities cannot be separated from sectarian ones,
and (2) that if secular activities can be separated out, they
alone may be funded. 426 U.S. at 755. The Roman Catholic
colleagues in Roemer were held not be previously sectarian.
The record supported findings that the institutions employed
chaplains who held worship services on campus, taught
mandatory religious classes, and started some classes with
prayer. However, there was a high degree of autonomy from the
Roman Catholic Church, the faculty was not hired on a
religious basis and had complete academic freedom except in
religion classes, and students were chosen without regard to
their religion.
A comparison of the colleges in Roemer with the elementary
and secondary schools in Committee for Public Education v.
Nyquist, 413 U.S. 756, 767-68 (1973), clarifies the term
``pervasively sectarian.'' The schools in Nyquist that were
found to be pervasively sectarian placed religious
restrictions on student admissions and faculty appointments,
enforced obedience to religious dogma, required attendance at
religious services, required religious or doctrinal study,
were an integral part of the mission of the sponsoring
church, had religious indoctrination as a primary purpose,
and imposed religious restrictions on how and what the
faculty could teach.
Although the definition of a pervasively sectarian
institution has been stated in the foregoing general terms,
only church-affiliated primary and secondary schools have
ever been found by the Supreme Court to fit the
profile. Presumably a church, synagogue, or mosque would
also be regarded as pervasively sectarian insofar as it
performs sacerdotal functions.
\32\ See, e.g., Committee for Pub. Educ. & Religious
Liberty v. Regan, 444 U.S. 646 (1980) (subsidy for state-
prepared testing and recordkeeping required by law); Wolman
v. Walter, 433 U.S. 229 (1977) (upholding use of public
personnel to provide guidance, remedial, and therapeutic
speech and hearing services at a neutral site; upholding
provision of diagnostic services in the nonpublic school;
upholding provision of standardized tests and state scoring);
Meek, 421 U.S. 349 (loan of secular textbooks); Board of
Educ. v. Allen, 392 U.S. 236 (1968) (secular textbooks).
\33\ See Aguilar v. Felton, 473 U.S. 402 (1985); Grand
Rapids Sch. Dist., 473 U.S. 373; New York v. Cathedral
Academy, 434 U.S. 125 (1977); Wolman, 433 U.S. 229; Meek, 421
U.S. 349; Nyquist, 413 U.S. 756; Levitt, 413 U.S. 472; Lemon
v. Kurtzman, 403 U.S. 602 (1971).
\34\ See Roemer, 426 U.S. 736; Hunt, 413 U.S. 734; Tilton
v. Richardson, 403 U.S. 672 (1971).
\35\ 175 U.S. 291 (1899).
\36\ In Bradfield, a corporation located in the District of
Columbia known as Providence Hospital was chartered in 1864
by act of Congress. The enabling act was facially neutral in
that it made no mention of religion, nor was the hospital
ostensibly controlled by or associated with a church.
Nevertheless, all the directors of the hospital and their
successors were ``members of a monastic order or sisterhood
of the Roman Catholic Church,'' and title to the real estate
on which the hospital buildings were constructed was ``vested
in the Sisters of Charity of Emmitsburg, Maryland.'' Id. at
297. Federal taxpayers challenged as violative of the
Establishment Clause an 1897 appropriation to build on the
hospital grounds ``an isolating building or ward for the
treatment of minor contagious diseases,'' that when completed
was to be turned over to Providence Hospital. Id. at 293.
This arrangement, alleged plaintiffs, was an instance in
which ``public funds are being used and pledged for the
advancement and support of a private and sectarian
corporation.'' Id. For consideration of the question before
it, the Court assumed, arguendo, that a capital appropriation
to a religious corporation would violate the Establishment
Clause. The Court said plaintiffs' allegations nonetheless
failed to show that Providence Hospital was a religious or
sectarian body. Merely because the board of directors was
composed entirely of members of the same religion did not
make the hospital religious. Without additional evidence, the
Court was unwilling to assume that Providence Hospital would
act otherwise than in accord with its legal charter, in which
its powers by all appearances were secular, having to do with
the care of the injured and infirm. Although plaintiffs
alleged that the hospital's business was ``conducted under
the auspices of the Roman Catholic Church,'' there was no
evidence that management of the business was limited to
members of that faith or that patients had to be Catholic.
Id. at 298-99. Bradfield turned on the inadequacies of
plaintiffs' pleading and evidence. The Court also had a
formalistic view of the importance of separate incorporation
by means of a facially neutral charter, notwithstanding that
the corporation had a de facto interlocking directorate with
a religious order. Accordingly, although the bottom-line
result in Bradfield was counter to a no-aid view of the
Establishment Clause, the Court utilized a separatistic
framework for its analysis.
\37\ 487 U.S. 589 (1994).
\38\ Id. at 600-02, 622.
\39\ 42 U.S.C. SS 300z to 300z-10 (1994).
\40\ Kendrick, 487 U.S. at 593, 608-09.
\41\ Id. at 595-96, 605-07.
\42\ Id. at 614-15.
\43\ Id. at 608 (quoting Roemer v. Maryland Pub. Works Bd.,
426 U.S. 736, 746 (1976)).
\44\ Id. at 609.
\45\ Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971).
\46\ Kendrick, 487 U.S. at 602-03.
\47\ Id. at 604-05, 613.
\48\ Id. at 605-06.
\49\ Id. at 606-07.
\50\ Id. at 610-11.
\51\ Id. at 606, 608.
\52\ Id. at 611-12.
\53\ Id. at 614.
\54\ Id. at 615-17.
\55\ See supra note 30 and accompanying text.
\56\ Kendrick, 487 U.S. at 623 (O'Connor, J., concurring).
\57\ Id. Justice O'Connor went on to warn that evidence of
a pattern or practice at HHS of disregarding the concerns of
the Establishment Clause on an as-applied basis would, in her
view, warrant overturning the entire AFLA. Id. at 623-24
(O'Connor, J., concurring).
\58\ In making this distinction, Justice O'Connor utilized
the sacred/secular dichotomy. See supra note 27. But the
dichotomy results in AFLA's constitutionality. In fact, the
presumption leads to the facial approval of all welfare
programs that permit equal participation by faith-based
providers.
\59\ 456 U.S. 228 (1982).
\60\ Id. at 244, 246. See also Fowler v. Rhode Island, 345
U.S. 67 (1953); Neimotko v. Maryland, 340 U.S. 268 (1951).
Religious organizations most willing to conform to
contemporary culture are less sectarian. Conversely, those
organizations more conservative in theology and that have
resisted acculturation will inevitably appear to civil judges
as more sectarian. ``To exclude from funding those groups
that are more ``sectarian'' is to punish those religions
which are countercultural while rewarding those groups
willing to secularize. A sociologist has identified the
``pervasively sectarian'' groups as ``orthodox,'' and the
``non-sectarians'' as religious ``progressives.'' Hunter,
supra note 4, at 42-46. Hunter says the religious
``orthodox'' are devoted ``to an external, definable, and
transcendent authority,'' whereas ``progressives''
``resymbolize historic faiths according to the prevailing
assumptions of contemporary life.'' Id. From the standpoint
of wanting to minimize governmental influence on private
religious choices, it is hard to imagine a more detrimental
rule than for the Supreme Court to penalize the orthodox
while rewarding the progressives.
\61\ Kiyas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687,
702-07 (1994); see Larson V. Valenta, 456 U.S. 228, 246 n. 23
(1982). The rationale, in part, is that the Court wants to
avoid making affiliation with a particular denomination or
type of religious group more attractive. If this were not the
law, then merely affiliating with a particular religious
group could result in a civil advantage or disadvantage.
\62\ One problem with the requirement of distinguished
between ``pervasively'' and ``non-pervasively'' sectarian
organizations is that the level of religiousness of faith-
based social service providers is a matter of degree, and
there are multiple ways to measure religiousness. Carl H.
Esbeck, The Religious of Religious Organizations as
Recipients of Governmental Assistance 8-9 (1996). Most
providers are neither fully sectarian nor fully secularized.
Any multifactor test the courts devise will end up favoring
some religious and prejudicing others. Sorting through the
array of social service providers would be a veritable briar
patch and cause the judiciary to violate its own admonitions
concerning entanglement.
\63\ See, e.g., Rosenberger v. Rector & Visitors of the
Univ. of Va., 115 S. Ct. 2510, 2524 (1995) (university should
avoid distinguishing between evangelism, on the one hand, and
the expression of ideas merely approved by a given religion
on the other); Corporation of the Presiding Bishop v. Amos,
483 U.S. 327, 336 (1987), and id. at 344-45 (Brennan, J.,
concurring) (recognizing a problem when the

[[Page H1932]]

government attempts to divine which jobs are sufficiently
related to the core of a religious organization as to merit
exemption from statutory duties); Bob Jones Univ. v. United
States, 461 U.S. 574, 604 n.30 (1983) (avoiding potentially
entangling inquiry into religious practice is desirable);
Widmar v. Vincent, 454 U.S. 263, 269-70 n.6, 272 n.11 (1981)
(holding that inquiries into significance of religious words
or events are to be avoided); Walz v. Tax Comm'n, 397 U.S.
664, 674 (1970) (avoiding entanglement that would follow
should tax authorities evaluate the temporal worth of
religious social welfare programs is desirable). Likewise, in
Jimmy Swaggart Ministries v. California Bd. of Equalization,
493 U.S. 378, 396-98 (1990), and Texas Monthly, Inc. v.
Bullock, 489 U.S. 1, 20 (1989) (plurality opinion), the Court
cautioned against unnecessarily making distinctions between
core religious practices (e.g., workship, doctrinal teaching,
distributing sacred literature) and those activities of
religious organizations that are more ancillary (e.g,
operating a soup kitchen or hospital). For similar reasons,
courts are to avoid making a determination concerning the
centrality of the belief or practice in question to an
overall religious system. See Lyng v. Northwest Indian
Cemetery Ass'n, 485 U.S. 439, 451 (1988) (rejecting free
exercise test that ``depend(s) on measuring the effects of a
governmental action on a religious objector's spiritual
development''); United States v. Lee, 455 U.S. 252, 257
(1982) (rejecting government's argument that free exercise
claim does not lie unless ``payment of social security taxes
will . . . threaten the integrity of the Amish religious
belief or observance''); Thomas v. Review Bd., 450 U.S. 707,
715-16 (1981) (holding that it is not within the judicial
function or competence to resolve religious differences); see
also Employment Div. v. Smith, 494 U.S. 872, 886-87 (1990).
\64\ Kendrick, 487 U.S. at 624-25 (Kennedy J., concurring).
Justice Kennedy's opinion was joined by Justice Scalia.
\65\ Id. at 624 (Kennedy, J., concurring).
\66\ Id. (Kennedy, J., concurring).
\67\ Id. at 624-25 (Kennedy, J., concurring).
\68\ Justice Kennedy's opinion is closest to the view of
neutrality theorists. But he too falls short. Justice Kennedy
would trace the government's funds and disallow any use for
the advancement of religion. The neutrality principle, as
will be discussed below, infra notes 138-43 and accompanying
text, requires only that the Court examine the outcome of the
welfare program with an eye to determining whether the public
purpose is being served by the social service provider. If
so, then the judicial inquiry is at an end, for the
government has received full ``secular'' value in exchange
for taxpayer funds.
\69\ There is no dispute between separationists and
neutrality theorists over whether the Establishment Clause
prohibits a tax or user fee earmarked for a religious
purpose. It clearly does. See infra note 127 and accompanying
text. What is disputed is whether monies collected by general
taxation and appropriated to support a welfare program that
does not discriminate against the participation of faith-
based social service providers is constitutional. See infra
notes 131-45 and accompanying text.
\70\ Grand Rapids Sch. Dist. v. Ball, 473 U.S. 373, 385
(1985).
\71\ Tilton v. Richardson, 403 U.S. 672, 689 (1971)
(rejecting claim by taxpayers challenging use of revenues for
funding of a state program to assist institutions of higher
education, including church-affiliated colleges); cf. United
States v. Lee, 455 U.S. 252, 257 (1982) (requiring Amish
employer to pay Social Security tax in violation of his
religious beliefs); United States v. American Friends Serv.
Comm., 419 U.S. 7 (1974) (per curiam) (holding that Quakers
facing federal income tax liability did not have free
exercise rights that overrode provision in anti-injunction
act barring claimants from suing to enjoin government from
collecting tax). The Court has never recognized a free
exercise right to object when revenues raised by general
taxation are used to assist the poor or needy by involving
faith-based providers in the delivery of welfare services
\72\ The Court has recognized a strong protection of
religious conscience found in the Free Speech Clause. See
Wooley v. Maynard, 430 U.S. 705, 714-15 (1977) (sustaining
claim by Jehovah's Witness challenging state requirement that
motor vehicle license plate bear the motto ``Live Free or
Die'' was violative of freedom of thought, which includes the
``right to refrain from speaking at all''); West Virginia v.
Barnette, 319 U.S. 624, 642 (1943) (public school compulsory
flag salute and pledge of allegiance ``invades the sphere of
intellect and spirit''); see also United States v. Ballard,
322 U.S. 78, 86 (1944) (``Freedom of thought, which includes
freedom of religious belief, is basic in a society of free
men.''). But such protection does not extend to taxpayers
objecting to the monies being paid to faith-based
organizations.
\73\ See, e.g., John H. Garvey, An Anti-Liberal Argument
for Religious Freedom, 7 J. Contempt. Legal Issues 275, 280-
82 (1996) (identifying liberal arguments for church/state
separation as, inter alia, the protection of society from
political strife); Douglas Laycock, Religious Liberty as
Liberty, 7 J. Comtemp. Legal Issues 313, 317 (1996) (one
reason for no-establishment principle is to minimize the
societal conflict that attends use of governmental force to
suppress religion); Ira C. Lupu, To Control Faction and
Protect Liberty: A General Theory of the Religion Clauses, 7
J. Contemp. Legal Issues 357, 360-62 (1996) (no-establishment
principle arose in response to the grave risk of political
disharmony resulting from uncontrolled religious
factionalism).
Typically the concern with religion dividing the body
politic is buttressed by reference to European religious
wars, which were known to the founding generation, as well as
by warnings that point to modern-day Northern Ireland,
Bosnia, or Lebanon. These are indeed events worthy of
avoidance. But separationists omit an obvious distinction
between these instances of sectarian strife and the goal of
neutrality theory. The sectarian wars of medieval Europe were
wars for religious monopoly. Each side sought to defeat the
other so as to establish its own religious hegemony.
Neutrality theory has no such goal. Indeed, its goal is just
the opposite, If the neutrality principle were to be
followed, then government's influence over religion would be
minimized and each individual's religious choices would be
more fully enabled. See infra note 98 and accompanying text.
In their concern for preventing sectarian strife, an
additional point overlooked by separationists is that the
Establishment Clause (indeed, the entire Bill of Rights) is a
check on government--not a check on religion. Thus, the no-
establishment principle guards against government's using its
power inappropriately taking sides on behalf of a religion.
Simply put, the Clause protects people from government. It
does not protect people from other people. It does not
protect a minority religion from a majority religion. And it
does not protect the nonreligious from the religious.
Separationists are prone to assume that religious ideologies
are more intolerant and absolutist than secular ideologies;
thus, they believe that the Establishment Clause is there
specifically to hold in check the excesses of religion. But
it is only the excesses of government that the Clause can
check. See Douglas Laycock, Continuity and Change in the
Threat to Religious Liberty: The Reformation Era and the Late
Twentieth Century, 80 Minn. L. Rev. 1047, 1048, 1089-95, 1102
(1996). In the twentieth century, secular ideologies have
proven every bit as violent as the sectarianisms of the
Middle Ages.
\74\ The most compelling argument for a continued strict
separation of church and state is the harm that can befall
religion itself when faith-based ministries become unduly
involved with governmental programs and benefits. Preserving
the autonomy of religious providers is beyond the scope of
this Article. This author has touched briefly on the matter
elsewhere. See Esbeck, supra note 62, at 47-51; Carl H.
Esbeck, Religion and a Neutral State: Imperative or
Impossibility? 15 Comberland L. Rev. 67, 80-83 (1984-85).
Others have also published on the topic. See, e.g., Besharov,
supra note 12; Marvin Olasky, The Corruption of Religious
Charities, in To Empower People: From State to Civil Society
ch. 8 (Michael Novak, ed., 2d ed. 1996); Joe Loconte, The 7
Deadly Sins of Government Funding for Private Charities,
Policy Rev., Mar./Apr. 1997; Amy L. Sherman, Cross Purposes:
Will Conservative Welfare Reform Corrupt Religious Charities?
Policy Rev., Fall 1995, at 58-63; David Walsh, Irreducible,
Inexplicable: The Effort to Carve Out a Utilitarian, Public-
Policy Role for Religion Strikes at the Core of Faith, Wash.
Post, Mar. 1, 1996, at A17. Nonetheless, the available
materials are few and anecdotal, and religious autonomy as an
important topic warrants more attention by scholars and
judges alike.
\75\ There was a time when the Supreme Court, in its
interpretation of the Establishment Clause, sought out
political divisiveness along religious lines as a violation
of the Clause. However, such evidence as a separate element
of Establishment Clause doctrine is now repudiated.
Corporation of Presiding Bishop v. Amos, 483 U.S. 327, 339
n.17 (1987); Lynch v. Donnelly, 465 U.S. 668 684-85 (1984);
Mueller v. Allen, 463 U.S. 388, 403-04 n.11 (1983). The
foregoing cases essentially rejected broad language in
earlier cases. See Wolman v. Walter, 433 U.S. 229, 256 (1977)
(Brennan, J., concurring and dissenting); id. at 258-59
(Marshall, J., concurring and dissenting); Meek v. Pittenger,
421 U.S. 349, 374-77 (1975) (Brennan, J., concurring and
dissenting); Lemon v. Kurtzman, 403 U.S. 602, 622-23 (1971).
Political divisiveness analysis was heavily criticized
because it ran counter to the Court's recognition elsewhere
that religious persons and groups have full rights of free
speech and political participation. See Edward M. Gaffney,
Political Divisiveness Along Religious Lines: The
Entanglement of the Court in Sloppy History and Bad Public
Policy, 24 St. Louis U. L.J. 205 (1980).
\76\ An example of this is found in Sec. 104 of the
Personal Responsibility and Work Opportunity Reconciliation
Act of 1996, 42 U.S.C. Sec. 604a (1996 Supp.). Section 104,
known by the popular name ``Charitable Choice,'' permits the
involvement of faith-based providers in the delivery of
welfare services funded by the federal government through
block grants to the states. For those faith-based providers
that choose to participate, Sec. 104(b), (d), and (f) set
forth several rights of provider autonomy from excessive
governmental regulation.
\77\ To these three requisites (a public purpose of social
betterment, nondiscrimination, and religious autonomy),
neutrality theory adds the right of the ultimate
beneficiaries to obtain their services from a nonreligious
provider if they have a sincere objection to a particular
faith-based provider. See infra note 138 and accompanying
text.
\78\ Some argue that the Establishment Clause, while
prohibiting the establishment

[[Page H1933]]

of a single national religion, was nevertheless intended to
allow Congress to support all religious denominations on a
nonpreferential basis. This is unlikely. When drafting the
First Amendment the First Congress was almost entirely
negative concerning the Amendment's intent, i.e., the new
central government was to have no authority concerning
religion. Hence, the Establishment Clause detailed what the
new central government could not to rather than what it could
do. Thomas J. Curry, The First Freedoms: Church and State in
America to the Passage of the First Amendment 198-222 (1986).
The Supreme Court rejected nonpreferentialism in Wallace v.
Jaffree, 472 U.S. 38, 68 (1985) (O'Connor J., concurring);
id. at 113 (Rehnquist, J., dissenting). See also Lee v.
Weisman, 505 U.S. 577, 612-18 (1992) (Souter, J.,
concurring); Douglas Laycock, ``Nonpreferential'' Aid to
Religion: A False Claim About Original Intent, 27 Wm. & Mary
L., Rev. 875 (1986). For arguments in support of
nonpreferentialism, see Wallace, 472 U.S. at 98 (Rehnquist,
J., dissenting); Robert Cord, Separation of Church and State:
Historical Fact and Current Fiction (1988); Michael Malbin,
Religion and Politics: The Intentions of the Authors of the
First Amendment (1978); Rodney K. Smith, Nonpreferentialism
in Establishment Clause Analysis: A Response to Professor
Laycock, 65 St. John's L. Rev. 245 (1991).
For present purposes it is important that the neutrality
principle not be confused with nonpreferentialism.
The distinction is clearly drawn in Justice Thomas's
concurring opinion in Rosenberger v. Rector & Visitors of
the Univ. of Va., 115 S. Ct. 2510, 2528-30 (1995) (Thomas
J., concurring).
\79\ Although the Supreme Court has never had before it a
situation involving a direct program of aid for religious
organizations alone, obiter dicta in various cases suggest
that any such program would be unconstitutional. See Kiryas
Joel Village Sch. Dist. v. Grumet, 512 U.S. 687, 702-07
(1994) (legislation favoring one religious sect is
unconstitutional); Committee for Pub. Educ. v. Nyquist, 413
U.S. 756 (1973) (striking down state aid to private education
the benefits of which went almost entirely to religious
schools); cf. Mueller v. Allen, 463 U.S. at 394, 396 n.6,
398-99 (explaining and distinguishing Nyquist).
\80\ See supra text accompanying notes 27-29.
\81\ 454 U.S. 263 (1981).
\82\ Id. at 271-74.
\83\ Equal Access act, 20 U.S.C. Sec. Sec. 4071-4074
(1994). The constitutionality of the Act was upheld in the
face of an Establishment Clause challenge in Board of
Education v. Mergens, 496 U.S. 226 (1990).
\84\ 508 U.S. 384 (1993) (disallowing viewpoint
discrimination against a church that had sought to show a
film about family life in a forum otherwise open to that
subject).
\85\ 115 S. Ct. 2440 (1995) (finding content-based
discrimination in the refusal to permit a controversial group
to sponsor a religious display in a civic park). Because
Pinette is illustrative of the current divisions within the
Court over separationism, the case is further discussed infra
notes 101-11 and accompanying text.
\86\ 115 S. Ct. 2510 (1995) (finding viewpoint
discrimination in a public university's denial of printing
costs for a student publication postulating religious
perspectives on current issues). Because Rosenberger involved
the Court in requiring a state university to finance a
student publication that printed religious views--not just
the provision of space in a public forum--the case is further
discussed infra notes 112-30 and accompanying text.
\87\ When the expression is not private speech but speech
by government, then the controlling norm remains a
separationist model. This seems entirely proper. Government
may neither confess inherently religious beliefs not advocate
that individuals profess such beliefs or observe such
practices. Several cases illustrate this point. See Lee v.
Weisman 505 U.S. 577 (1992) (striking down prayer in
conjunction with commencement ceremonies at a public junior
high); County of Allegheny v. ACLU, 492 U.S. 573 (1989)
(disallowing display of nativity scene inside courthouse, but
upholding display of menorah outside public building as part
of larger holiday scene); Stone v. Graham, 449 U.S. 39 (1980)
(per curiam) (striking down state law requiring posting of
Ten Commandments in public school classrooms); Epperson v.
Arkansas, 393 U.S. 97 (1969) (striking down state law
prohibiting teaching theory of evolution in public schools);
School Dist. v. Schempp, 374 U.S. 203 (1963) (disallowing
devotional reading of Bible and recitation of Lord's Prayer
in public schools); Engel v. Vitale, 370 U.S. 421 (1962)
(disallowing state requirement of daily classroom prayer in
public schools); and McCollum v. Board of Educ., 333 U.S. 203
(1948) (disallowing program in which local volunteers came to
public school campus to teach religion).
Lynch v. Donnelly, 465 U.S. 668 (1984), and Marsh v.
Chambers, 463 U.S. 783 (1983), are two aberrations. But Lynch
and Marsh, while antiseparationist to be sure, are not based
on equality either. Rather, in their rationales, Lynch and
Marsh are driven by a desire to cling to historical practices
dating from a time when America was less religiously plural.
\88\See infra notes 90-100 and accompanying text.
\89\ See infra notes 133-35 and accompanying text.
\90\ A ``benefit'' means direct or indirect financial
assistance for a public purpose. The benefit may be in the
form of a subsidy, grant, entitlement, loan, or insurance, as
well as a tax credit or deduction. A tax exemption, such as
that upheld in Walz v. Tax Commission, 397 U.S. 664, 676
(1970), is to be distinguished from tax credits and
deductions. Credits and deductions are government benefits. A
tax exemption, however, is the government's election to
``leave religion where it found it,'' rather than the
conferring of a benefit. For First Amendment purposes a tax
credit or deduction should all be regarded alike as ``tax
expenditures,'' while useful in other areas of fiscal policy,
does not make sense in dealing with issues that arise under
the Establishment Clause. See Dean M. Kelley, Why Churches
Should Not Pay Taxes 11-13, 47-57 (1977); Boris I. Bittker,
Churches, Taxes and the Constitution, 78 Yale L.J. 1285
(1969); Boris I. Bittker & George K. Rahdert, The Exemption
of Nonprofit Organizations from Federal Income Taxation, 85
Yale L.J. 299, 345 (1976).
\91\ A ``burden'' means a regulation, a tax, or a criminal
prohibition.
\92\ 483 U.S. 327 (1987).
\93\ Id. at 335. See also Trans World Airlines v. Hardison,
432 U.S. 63, 90 (1977) (Marshall, J., dissenting) (stating
that constitutionality of labor law not placed in doubt
simply because it requires religion exemption); Gillette v.
United States, 401 U.S. 437 (1971) (religious exemption from
military draft for those who oppose all war does not violate
Establishment Clause); Walz, 397 U.S. 664 (upholding property
tax exemptions for religious organizations); Zorach v.
Clauson, 343 U.S. 306 (1952) (upholding release time program
for students to attend religious exercises off public school
grounds); Selective Draft Law Cases, 245 U.S. 366 (1918)
(upholding, inter alia, military service exemptions for
clergy and theology students).
Estate of Thorton v. Caldor, Inc., 472 U.S. 703 (1985), is
not to the contrary. In Thorton, the Court struck down a
state law favoring Sabbath observance. However, as explained
in Hobbie v. Unemployment Appeals Commission, 480 U.S. 136,
145 n.11 (1987), the Sabbath law was struck down because the
state cannot utilize classifications that single out a
specific religious practices, thereby favoring that
particular practice, as opposed to language inclusive of a
general category of religious observances. For example, if
Saturday as a day of rest is legislatively required to be
accommodated by employers, all religious practices to be
excused (including all religious days of rest) must be
required to be accommodated. If a kosher diet is required to
be accommodated by commercial airlines, then all religious
practices (including all religious dietary requirements) must
be accommodated. If a student absence from school is excused
for Good Friday, then all absences for all religious holy
days must be accommodated. Id.
The special needs of national defense maker Gillette
distinguishable from Thorton. In Gillette, Congress was
permitted to accommodate ``all war'' pacifists but not ``just
war'' inductees because to broaden the exemption would invite
increased church/state entanglements and would render almost
impossible the fair and uniform administration of the
Selective Service System. Gillette, 401 U.S. at 450. The only
decision that does appear to be at odds with the principle
followed in Amos and these other cases is Texas Monthly, Inc.
v. Bullock, 489 U.S. 1 (1989) (plurality opinion)
(disallowing sales tax exemption for purchases of religious
literature).
\94\ The Court was most explicit in making the salient
distinction between benefits and burdens in Amos. Pointing
out that it had previously upheld laws that helped religious
groups advance their purposes, the Court explained:
A law is not unconstitutional simply because it allows
churches to advance religion, which is their very purpose. *
* * (I)t must be fair to say that the government itself has
advanced religion through its own activities and influence. *
* *
(T)he Court * * * has never indicated that statutes that
give special consideration to religious groups are per se
invalid.
483 U.S. at 337, 338.
\95\ U.S. Const. amend. I. The Establishment Clause, in its
entirety, provides: Congress shall make no law respecting an
establishment of religion . . . . U.S. Const. amend. I.
\96\ Douglas Laycock, Towards a General Theory of the
Religion Clauses, 81 Colum. L. Rev. 1773, 1416 (1981).
\97\ Walz, 397 U.S. at 676 (It is desirable when government
refrains from imposing a burden on religion so as ``to
complement and reinforce the desired separation insulating
each from the other.'')
\98\ Unleashing personal religious choice as the core value
of the Establishment Clause is not being elevated here as
good theology, just good jurisprudence. It is good
jurisprudence because religious choice as a core value allows
each religion to flourish or die in accord with its own
appeal. Choice as the controlling legal standard maximizes
liberty of both the individual and the religious community,
while neutralizing the impact of governmental action on
religious life. In these respects it is biased toward a
Western conception of human rights and a limited state. This
bias, however, is cause for neither surprise nor apology. It
is the Founders' legacy, and they were decidedly Western.
Good theology is another matter; for observant Jews and
Christians, religious liberty consists not in doing what we
choose, but in the freedom to do what we ought. In Jewish and
Christian orthodoxy, belief and practice are understood in
terms of truth,

[[Page H1934]]

not choice. The point here is that it should not be troubling
that religious choice is the core value when interpreting the
Establishment Clause. There is no reason that law and
theology must converge on this point. It is sufficient that
law maximizes the individual's freedom to pursue a direction
indicated by his or her theology.
\99\ In Dodge v. Salvation Army, 48 Empl. Prac. Dec. (CCH)
ae 38,619 (S.D. Miss. 1989), a strange case with an
unfortunate holding, a religious social service ministry
dismissed an employee when it was discovered she was a member
of the Wiccan religion and was making unauthorized use of the
office photocopy machine to reproduce cultic materials. When
the employee sued, claiming religious discrimination, the
Salvation Army invoked the ``religious organization''
exemption in Title VII, 42 U.S.C. Sec. 2000e-1 (1994). The
employee countered that the Title VII exemption should not
apply because her salary was substantially funded by a
federal grant. The trial court agreed with the employee,
holding that the Title VII exemption for religious
discrimination by a religious organization was
unconstitutional on these facts. The trial court thought the
exemption advanced religion in a manner violative of the
Establishment Clause when applied to government-subsidized
jobs. 48 Empl. Prac. Dec., at 55,409.
The holding in Dodge was a mistake. The trial court failed
to observe the burden/benefit distinction when it ran
together the separate issues of benefits and burdens. The
question of whether the Salvation Army may receive a direct
benefit consonant with the Establishment Clause is controlled
by Bowen v. Kendrick, 487 U.S. 589 (1988). The answer to that
question, whether ``yes'' or ``no,'' is entirely independent
of the question of whether the Salvation Army may claim the
Title VII exemption from the regulatory burden of compliance
with the civil rights law. The Court's decision in Amos
holding that the Title VII exemption did not violate the
Establishment Clause had already answered the second question
in the affirmative. Amos, 483 U.S. 327.
A better reasoned result, one contrary to Dodge, was
reached by the federal court in Young v. Shawnee Mission
Medical Center, No. CIV.A. 88-2321-3, 1988 LEXIS 12248 (D.
Kan. Oct. 21, 1988) (rejecting argument that Seventh-day
Adventist Hospital lost its title VII exemption because it
received federal Medicare funding).
\100\ Shifting the analysis from benefits to burdens does
not mean moving the baseline from which the neutrality of the
government's action is measured. The baseline is not rooted
in history or time, but in the principle of minimizing
government's impact on personal religious choice. As
previously conceded, this choice of baseline is not genuinely
neutral. See supra notes 10-11. Thus, whether assessing the
constitutionality of a benefit or a burden, the location of
the baseline is consistent, albeit not neutral.
This combination of receiving equal access to governmental
benefits but being specially relieved of burdens carried by
others occurred in Hsu v. Roslyn Union Free School
District, 85 F.3d 839 (2d Cir.), cert. denied, 117 S. Ct.
608 (1996). In Hsu, a student religious club claimed the
right to meet on the campus of a public high school on the
same basis as other noncurricular student organizations.
The religious club had a right to this benefit under a
federal statutory law and the Free Speech Clause. However,
when it came to its selection of leaders, the school
prohibited the club from selecting only Christians. The
appeals court held that as to officers with spiritual
functions the club had a right to be relieved of the
school's nondiscrimination requirement. Election of
leaders sharing the same faith was essential to the club's
self-definition, as well as the maintenance of its
associational character and continued expression as a
Christian club. Id. at 856-62. Logically, the same result
would be reached under the Free Exercise Clause.
\101\ 115 S. Ct. 2440 (1995).
\102\ 115 S. Ct. 2510 (1995).
\103\ Pinette, 115 S. Ct. at 2445.
\104\ Id. at 2447-50. Justice Thomas wrote separately
stating his view that the content of the Klan's message was
political rather than religious. Id. at 2450-51 (Thomas, J.,
concurring).
\105\ Id. at 2455 (O'Connor, J., concurring). Justice
O'Connor's opinion was joined by Justices Souter and Breyer.
\106\ Id. at 2452-53 (O'Connor, J., concurring).
\107\ Id. at 2454 (O'Connor, J., concurring).
\108\ Id. at 2458-59 (Souter, J., concurring).
\109\ Id. at 2464 (Stevens, J., dissenting).
\110\ Id. at 2475 (Ginsburg, J., dissenting).
\111\ See Kathleen M. Sullivan, Religion and Liberal
Democracy, 59 U. Chi. L. Rev. 195, 197-214, 222 (1992) (the
First Amendment's negative bar against an establishment of
religion implies an affirmative establishment of a secular
public order). To be sure, the Establishment Clause prohibits
the establishment of a national church, which of course was
no more likely in 1789-91 than it is today. But the Clause
does not thereby establish a new religion of Secularism.
Rather, no credo is by law established, setting at liberty
the hearts of all to embrace any faith or none, as each is
persuaded concerning such matters.
\112\ 115 S. Ct. 2510 (1995).
\113\ Id. at 2515.
\114\ Id. at 2514-15.
\115\ Id. at 2513.
\116\ Id. at 2520-21.
\117\ Id. at 2516.
\118\Id. at 2516-18.
\119\ Id. at 2515.
\120\ Id. at 2519-20.
\121\ Id. at 2521 (citations and internal quotations
omitted).
\122\ Id. at 2522.
\123\ Id. at 2523-24.
\124\ Id. at 2524.
\125\ Id. at 2528 (O'Connor, J., concurring).
\126\ Id. at 2526-27 (O'Connor, J., concurring).
\127\ Id. at 2528 and n.1 (Thomas, J., concurring).
\128\ Id. at 2528-30 (Thomas, J., concurring). Cf. id. at
2536 n.* (Souter, J., dissenting). The Supreme Court has
already rejected an argument by federal taxpayers that the
Free Exercise Clause is violated should they as contributors
to the nation's general tax revenues have to ``pay for''
benefits provided to religious organizations. See supra note
71.
\129\ Rosenberger, 115 S. Ct. at 2535-39 (Souter, J.,
dissenting).
\130\ Id. at 2544-47 (Souter, J., dissenting).
\131\ Justice O'Connor's ``no endorsement test,'' was first
advanced in the Christmas nativity scene case of Lynch v.
Donnelly, 465 U.S. 668, 687 (1984) (O'Connor, J.,
concurring).
\132\ In a departure from the separationist view, Justice
O'Connor's no endorsement test is not a funds-tracing
analysis. Rather, her reliance on the objective observer is
an appearance-of-impropriety analysis. Instead of focusing on
whether religion is advanced by direct funding, as
separationists do, Justice O'Connor is concerned with the
civic alienation felt by her observer as she looks at welfare
legislation aiding social service providers, including those
that are faith-based. Accordingly, the issue for Justice
O'Connor is not whether the aid has the effect of advancing
religion, but whether it appears to single out religion for
favoritism.
\133\ See also Church on the Rock v. City of Albuquerque,
84 F.3d 1273 (10th Cir.), cert. denied, 117 S. Ct. 360
(1996). Following Rosenberger and Pinette, the appeals court
in Church on the Rock struck down a congressional prohibition
on private religious speech, thereby permitting access to
senior citizen centers funded in part by the federal
government. The Free Speech Clause was again the source of
the right to equal treatment.
\134\ The Free Exercise Clause prevents a legislature from
adopting a welfare program in which a broad array of
providers, governmental and independent, are eligible, but
expressly excluding faith-based providers because they are
religious. Thus, equal treatment is commanded by the Free
Exercise as well as the Free Speech Clause. See supra note 26
and accompanying text.
While admitting to a prima facie violation of the Free
Exercise Clause, separationists argue that stopping all
funding to religious organizations serves the ``compelling
interest'' of compliance with the Establishment Clause. But
this argument was rejected as to the Free Speech Clause in
Rosenberger, 115 S. Ct. at 2520-25. Moreover, there is
nothing in the wording of the First Amendment that suggests
that when clauses ostensibly ``conflict,'' the Establishment
Clause overrides the Free Exercise and Free Speech Clauses.
One could just as easily presume that the Free Exercise and
Free Speech Clauses supersede the Establishment Clause. Of
course, there is no conflict between these Clauses when the
neutrality principle is followed. See infra notes 155-57
and accompanying text.
\135\ It might be asked whether the Court majority would
still have found the Establishment Clause defense
unsuccessful in Widmar, Lamb's Chapel, Pinette, and
Rosenberger, in the absence of the claimants' successful free
speech claim. The answer is ``yes.'' In each case the free
speech and no-establishment questions were considered
independently of the other. Never did the Court suggest that
the Free Speech Clause overrode the Establishment Clause. In
each case the government voluntarily opened a limited public
forum, and it was clear the government retained the authority
to close the forum to all speakers. Free speech did not add
the margin of victory over the no-aid-to-religion defense.
What is required of government is that it have a secular
purpose for its benefit program. That purpose may be the
provision of a forum for a diverse array of speech, but the
purpose may also be meeting the welfare needs of the poor.
\136\ Pub. L. 104-155, 104th Cong., (1996), signed into law
by the President on July 3, 1996.
\137\ Id. at Sec. 4(a)(1).
\138\ See Sec. 104 of the Personal Responsibility and Work
Opportunity Reconciliation Act of 1996, 42 U.S.C. Sec. 604a
(1996 Supp.). Known by the popular name of ``Charitable
Choice,'' Sec. 104 permits states to involve faith-based
providers in the delivery of welfare services funded by the
federal government through block grants to the states.
Subsection 104(e) provides that if a beneficiary has a
religious objection to receiving social services from a
faith-based provider, he or she has a right to obtain
services from a different provider.
\139\ This can be accomplished by fiscal audits of monies
from governmental sources, as well as by end-result
evaluations during performance reviews undertaken to ensure
that the needs of the beneficiaries targeted by the
legislation are being served. Such intrusions are a tolerable
level of interaction between religion and government.
\140\ An example of this model is found in the regulations
to the federal Child Care Block Grant Act of 1990, providing,
inter alia, certificates to low-income parents who may then
``spend'' the benefit at the child care

[[Page H1935]]

provider they select for their child. The regulations state
that the monies from such certificates: (3) May be used for
child care services provided by a sectarian organization or
agency, including those that engage in religious activities,
if those services are chosen by the parent; (and) (4) May be
expended by providers for any sectarian purpose or activity,
including sectarian worship or instruction. * * *
42 C.F.R. Sec. 98.30(c).
\141\ Inquiry into ``purpose'' may go beyond the mere text
or ``face'' of a statute. Church of the Lukumi Babalu Aye,
Inc. v. City of Hialeah, 508 U.S. 520, 533-35 (1993); see
Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687, 699
(1994).
Legislative purpose, however, should not be confused with
legislative motive. A judicial inquiry may not go into the
subjective motive of each legislator supporting a legislative
bill. A motive analysis would not only have implications for
the denial of religious freedom (McDaniel v. Paty, 435 U.S.
616, 641 (1978) (Brennan, J., concurring in the judgment),
but also for violating the separation of powers (United
States v. O'Brien, 391 U.S. 367, 383 (1968)). See Board of
Educ. v. Mergens, 496 U.S. 226, 249 (1990) (plurality
opinion) (``Even if some legislators were motivated by a
conviction that religious speech in particular was valuable
and worthy of protection, that alone would not invalidate the
Act, because what is relevant is the legislative purpose of
the statute, not the possibly religious motives of the
legislators who enacted the law.'').
\142\ To require states to distinguish between
``pervasively'' and ``non-pervasively'' sectarian
organizations would seem to violate one of the venerable
rules of the Establishment Clause, to the effect that
government is not to intentionally discriminate among
religious groups. Larson v. Valente, 456 U.S. 228 (1982), See
also supra notes 59-63, and accompanying text. Under
neutrality theory this inconsistency is avoided.
\143\ Committee for Pub. Educ. v. Nyquist, 413 U.S. 756,
780 (1973).
\144\ See Henry G. Cisneros, U.S. Dep't of Hous. and Urban
Dev., Higher Ground; Faith Communities and Community Building
6-12 (1996) (citing studies and examples of the success of
faith-based community development activities); National Inst.
on Drug Abuse, U.S. Dep't of Health, Educ. and Welfare, An
Evaluation of the Teen Challenge Treatment Program (1977)
(showing a materially higher success rate for faith-based
over secular drug treatment programs for youth); Religious
Institutions as Partners in Community Based Development, in
Progressions: A Lilly Endowment Occasional Report (Feb. 1995)
(noting success with community-based development that came
only after involving the local church).
\145\ See supra notes 92-97 and accompanying text.
\146\ See supra notes 59-63, 78-79, 87, 93, infra notes
149-51 and accompaning texts.
\147\ ``Inherent religious'' means those intrinsic and
exclusively religious activities of worship and the
propagation or inculcation of the sort of matters that
comprise confessional statements or creeds. In addition, the
term includes the supernatural claims of churches, mosques,
synagogues, temples, and other houses of worship, using those
words not to identify buildings, but to describe the
confessional community around which a religion identifies and
defines itself, conducts its worship, teaches doctrine, and
propagates the faith to children and adult converts.
Although a view of religion and life as an integrated whole
is desirable, for purposes of the Establishment Clause it
becomes necessary to recognize that some core beliefs and
practices are ``inherently religious.'' The necessity of a
fixed boundary in church/state relations requires a uniform
legal standard in drawing the line of church/state
separation. The line of separation cannot be drawn
differently for each religious organization based on its own
unique definition of religion. That would amount to
governmental discrimination among religions (a violation of
the rule stated in Larson, 456 U.S. 228 (1982)).
This is not to say that the Supreme Court has resolved all
the definitional problems by confining Establishment Clause
analysis to matters ``inherently religious.'' The Court's
determination as to what is ``inherently religious''
inevitble will favor the philosophy of modern rationalism
(its underlying tenets will appear arguably nonreligious)
while disfavoring familiar theistic religions such as
Christianity, Judasim, and Islam (their tenets and practices
appearing inherently religious). See Phillip E. Johnson,
Concepts and Compromise in First Amendment Religious
Doctrine, 72 Cal. L. Rev. 817, 834-35 (1984). But as stated
above, this is a consequence of the impossibility of the
Establishment Clause's being ``neutral'' as to all world
views. See supra notes 10-11 and accompanying text.
\148\ The Supreme Court has found that prayer, devotional
Bible reading, veneration of the Ten Commandments, classes in
confessional religion, and the biblical story of creation are
all inherently religious. See Lee v. Weisman, 505 U.S. 577
(1991) (prayer); Edwards v. Aguillard, 482 U.S. 578 (1987)
(creationism); Wallace v. Jaffree, 472 U.S. 38 (1985)
(prayer); Stone v. Graham, 449 U.S. 39 (1980) (per curiam)
(Ten Commandants); Epperson v. Arkansas, 393 U.S. 97 (1968)
(creationism); School Dist. v. Schempp, 374 U.S. 203 (1963)
(prayer and Bible reading); Engle v. Vitate, 370 U.S. 421
(1962) (prayer); McCollum v. Board of Educ., 333 U.S. 203
(1948) (teaching religion).
On the other hand, legislation restricting abortion, Sunday
closing laws, rule prohibiting interracial marriage, and
teenage sexuality counseling are not inherently religious.
See Bowen v. Kendrick, 487 U.S. 589 (1988) (teenage
counseling; Bob Jones Univ. v. United States, 461 U.S. 574,
604 n.30 (1983) (interracial marriage); Harris v. McRae, 448
U.S. 297 (1980) (abortion restrictions); McGowan v. Maryland,
366 U.S. 420 (1961) (Sunday closing law); Two Guys from
Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582 (1961)
(Sunday closing law).
\149\ The Establishment Clause is not violated when a
governmental social program merely reflects a moral judgment,
shared by some religions, about conduct through beneficial
(or harmful) to society. Kendrick, 487 U.S. at 604 n.8, 613;
Harris, 448 U.S. at 319-20; McGowan, 366 U.S. at 442;
Hennington v. Georgia, 163 U.S. 299, 306-07 (1896); see Bob
Jones Univ., 461 U.S. at 604 n.30. Thus, overlap between a
law's purpose and the moral teaching of some religions does
not, without more, render the law one ``respecting an
establishment of religion.
\150\ The Supreme Court has held that when a law of general
public purpose has a disparate effect on various religious
organizations, the Establishment Clause is not violated.
Hernandez v. Commissioner, 490 U.S. 680, 696 (1989); Bob
Jones Univ., 461 U.S. at 604 n. 30; Larson, 456 U.S. at 246
n. 23.
\151\ The Supreme Court has held that the Establishment
Clause prohibits government from purposefully discriminating
among religious groups. Larson, 456 U.S. 228; Fowler v. Rhode
Island, 345 U.S. 67 (1953); Niemotko v. Maryland, 340 U.S.
268 (1951).
\152\ See F. William O'Brien, The Blaine Amendment 1875-
1876, 41 U. Det. L.J. 137 (1963); Note, Beyond the
Establishment Clause; Enforcing Separation of Church and
State Through State Constitutional Provisions, 71 Va. L. Rev.
625 (1985). Although dated, a useful work in the area of
religion and state constitutions is Chester James Antieau et
al., Religion Under the State Constitutions (1965).
\153\ See supra note 144.
\154\ See Esbeck, supra note 62; Stephen V. Monsma, When
Sacred and Secular Mix; Religious Nonprofit Organizations and
Public Money (1996).
\155\ 456 U.S. 228. See supra notes 59-60 and accompany
text.
\156\ See supra notes 61-63 and accompanying text.
\157\ 508 U.S. 520 (1993). See supra notes 26 and 134.

Madam Chairman, I yield back the balance of my time.
The CHAIRMAN pro tempore. The question is on the amendment, as
modified, offered by the gentleman from Indiana (Mr. Souder).
The question was taken; and the Chairman pro tempore announced that
the ayes appeared to have it.
Mr. EDWARDS. Madam Chairman, I demand a recorded vote, and pending
that, I make the point of order that a quorum is not present.
The CHAIRMAN pro tempore. Pursuant to House Resolution 460, further
proceedings on the amendment, as modified, offered by the gentleman
from Indiana (Mr. Souder) will be postponed.
The point of no quorum is considered withdrawn.
Mr. LAZIO. Madam Chairman, I ask unanimous consent to strike the last
word.
The CHAIRMAN. Is there objection to the request of the gentleman from
New York?
There was no objection.
The CHAIRMAN. The gentleman is recognized for 5 minutes.
Mr. LAZIO. Madam Chairman, I yield to my friend, the gentleman from
New York (Mr. Walsh), who was also the very able chairman of the
Subcommittee on VA, HUD, and Independent Agencies of the Committe on
Appropriations having jurisdiction over the vast majority of housing
programs and all the housing programs through HUD concerning the
process and prohibition against set-asides.
Mr. WALSH. Madam Chairman, I thank my good friend and colleague, the
gentleman from New York (Mr. Lazio), chairman of the Subcommittee on
Housing and Community Opportunity. I thank the gentleman for the
important work he is doing today. Homeownership is the American dream,
and this legislation will help to make that American dream possible for
many, many more.
Just one issue that I would like to discuss briefly. That is Section
402 of this important bill. Because the language of the appropriations
bill funds several programs as set-asides within the CDBG account, the
language could be construed to prohibit funds for authorized programs
such as Youth Build, Habitat for Humanity, and so on.
I know that is not the gentleman's intent, but it is my understanding
that

[[Page H1936]]

the authorizing committee does not intend this as a result. I would
just like to ask if my understanding of that is correct.
Mr. LAZIO. Reclaiming my time, Madam Chairman, I want to say to my
friend, the gentleman from New York, that it is not the intention nor
do we think it is the operation of the bill to prohibit the set-asides
that have been authorized for programs like Youth Build or the NCDI,
National Community Development Initiative, or self-help housing that
helps so many Americans through Habitat for Humanity and other self-
help programs.
It is not the intention nor do we think it is the operation of this
bill to do that, but I would be happy to work with the gentleman to
ensure that that intent is clearly reflected in the bill as signed by
the President.
Mr. WALSH. I thank the gentleman for his very constructive response.
I look forward to working with him as we go down the path towards the
conference to make sure that our committee's responsibilities are not
hamstrung. I thank the gentleman from New York.
Mr. LAZIO. I want to thank the gentleman also.
I want to take this opportunity to say that the gentleman from New
York (Mr. Walsh) really, in the short time that he has been the
chairman of the Subcommittee on VA, HUD, and Independent Agencies on
the appropriations side, has just been doing a really remarkable job
for America and for this Congress. He has proven to be a very able
advocate for housing programs and for many of the programs he just
referenced.
I want to take this opportunity to thank him.
The CHAIRMAN pro tempore. It is now in order to consider amendment
No. 12 printed in House Report 106-562.

Amendment No. 12 Offered by Mr. Gary Miller of California

Mr. GARY MILLER of California. Madam Chairman, I offer an amendment.
The CHAIRMAN. The Clerk will designate the amendment.
The text of the amendment is as follows:

Amendment 12 offered by Mr. Gary Miller of California:
At the end of the bill add the following new title:
TITLE XII--PUBLIC AND ASSISTED HOUSING DRUG ELIMINATION PROGRAM

SEC. 1201. ELIGIBLE PUBLIC HOUSING AGENCIES.

Section 5125 of the Anti-Drug Abuse Act of 1988 (42 U.S.C.
11904) is amended--
(1) in subsection (b)--
(A) in paragraph (2)(B), by inserting ``or (4)'' before the
period at the end;
(B) by redesignating paragraph (4) as paragraph (5); and
(C) by inserting after paragraph (3) the following new
paragraph:
``(4) Effective pha's.--The class established under this
paragraph is the class of public housing agencies that
demonstrate, to the satisfaction of the Secretary, that--
``(A) the agency, in cooperation with local law enforcement
agencies, has largely eliminated drug and crime problems in
the public housing project or projects for which the
assistance will be used;
``(B) the agency needs assistance under this chapter to
sustain the low incidence of crime and drug problems in and
around such public housing; and
``(C) such assistance will be used to expand police
services in and around such public housing.''; and
(2) in subsection (c)(1), by inserting before the semicolon
the following: ``except that this paragraph shall not apply
in the case of agencies eligible for assistance under this
chapter pursuant to subsection (b)(4)''.

The CHAIRMAN pro tempore. Pursuant to House Resolution 460, the
gentleman from California (Mr. Gary Miller) and a Member opposed each
will control 5 minutes.
The Chair recognizes the gentleman from California (Mr. Gary Miller).

Modification to Amendment No. 12 Offered by Mr. Gary Miller

Mr. GARY MILLER of California. Mr. Chairman, I ask unanimous consent
to modify the amendment.
The CHAIRMAN pro tempore. The Clerk will report the modification.
The Clerk read as follows:

Amendment No. 12, as modified, offered by Mr. Gary Miller
of California:
The amendment as modified is as follows:
At the end of the bill add the following new title:
TITLE XII--PUBLIC AND ASSISTED HOUSING DRUG ELIMINATION PROGRAM

SEC. 1201. ELIGIBLE PUBLIC HOUSING AGENCIES.

Section 5125 of the Anti-Drug Abuse Act of 1988 (42 U.S.C.
11904) is amended--
(1) in subsection (b)--
(A) in paragraph (2)(B), by inserting ``or (4)'' before the
period at the end;
(B) by redesignating paragraph (4) as paragraph (5); and
(C) by inserting after paragraph (3) the following new
paragraph:
``(4) Effective pha's.--The class established under this
paragraph is the class of public housing agencies that
demonstrate, to the satisfaction of the Secretary, that--
``(A) the agency received grants under this chapter to
carry out eligible activities under this chapter, as in
effect immediately before the effective date under section
503(a) of the Quality Housing and Work Responsibility Act of
1998;
``(B) the agency, in cooperation with local law enforcement
agencies, has largely eliminated drug and crime problems in
the public housing project or projects for which the
assistance will be used;
``(C) the agency needs to maintain or expand police
services in and around such public housing to sustain the low
incidence of crime and drug problems in and around such
public housing; and
``(D) the agency needs, and will use, assistance under this
chapter to maintain or expand such police services;

except that such agencies shall be eligible under this
paragraph only during the 5-year period beginning upon
initial eligibility under this paragraph.''; and
(2) in subsection (c)(1), by inserting before the semicolon
the following: ``except that this paragraph shall not apply
in the case of agencies eligible for assistance under this
chapter pursuant to subsection (b)(4)''.

Mr. GARY MILLER of California (during the reading). Madam Chairman, I
ask unanimous consent that the modification to the amendment be
considered as read and printed in the Record.
The CHAIRMAN pro tempore. Is there objection to the request of the
gentleman from California?
There was no objection.
The CHAIRMAN pro tempore. Is there objection to the modificaton of
the amendment offered by the gentleman from California?
There was no objection.
The CHAIRMAN pro tempore. The amendment is modified.
Mr. GARY MILLER of California. Madam Chairman, I yield myself such
time as I may consume.
Madam Chairman, I have worked with the chairman and the gentleman
from New York (Mr. Lazio), and have worked on a compromise to include
my amendment in H.R. 1776. I would like to thank the chairman for his
assistance in this.
Low-income housing tenants often become the victims of crime and drug
operations. Oftentimes lax management and oversight give way to blight.
As drug use and drug-related crimes rose alarmingly in the 1980s,
Congress responded by authorizing the Public Housing Drug Elimination
Program in 1998.
Historically, local housing authorities applied for these funds when
HUD issued a notice of funds availability, and housing authorities
competed with one another for the available funding. This is no longer
the case. Instead, in 1999, the competitive application process was
changed to a formula funding program. This new criteria for Public
Housing Drug Elimination Program funds favor those agencies with severe
problems in both public housing and in the community.
As a result, housing authorities in communities that run good public
housing programs and have established successful drug prevention
programs with these program funds are no longer eligible to receive
funding under this program. HUD has pulled the rug from beneath the
feet of all the programs that are successful.
My amendment will modify the ``eligible local housing authority''
definition for the HUD Drug Elimination Program grants to continue
support for projects that are meeting their goals. Local housing
authorities that can show evidence through local efforts between the
housing authority and the police department that they are eliminating
drugs and crime problems in their public housing will remain eligible.
However, instead of encouraging success, we are currently promoting
failure. The city of Upland, California, Upland is a perfect example.
Upland was one of many housing authorities which faced severe drug and
crime problems. However, they chose to take control and started a
program, with the full support of the Upland police department in 1980.
Today Upland has one of the lowest crime rates in public housing in the
country.
In 1997 and 1998, Upland's police department handled 27,000 cases. Of
those

[[Page H1937]]

cases in those 2 years, only 31 cases occurred in the housing
authority. That is a tremendous improvement over what it was prior to
their becoming proactive in trying to eliminate the problem.
Now the city is facing financial difficulties, and it is becoming
increasingly difficult for the police department to give the program
the same level of service it has in the past. Under HUD's definition,
they are no longer eligible to compete for the funds they used to
receive for the program to fight drugs simply because they have done a
great job.
I applaud the city of Upland for this tremendous achievement, but it
is not the only success story now that is now on the verge of failure.
Every Member of Congress is faced with the same challenge in their
district, and we cannot leave them in the cold.
In conclusion, this is a simple case of HUD rewarding housing
authorities for doing a bad job, and punishing those who have worked
hard to reduce or eliminate the drug problem in their communities.
These successful communities should be able to continue their programs
using the Public Housing Drug Elimination Program funds.
If they are unable to continue the drug prevention efforts, the
problem will return. Would we only allow a doctor to give enough
medicine to reduce the illness, or would we give enough medicine to
cure the disease?
I would like to thank the chairman, the gentleman from New York (Mr.
Lazio), for his help in working on this bill.
Madam Chairman, I reserve the balance of my time.
The CHAIRMAN pro tempore. Does any Member claim the time in
opposition?
Mr. LaFALCE. Madam Chairman, I rise not in opposition, but ask
unanimous consent to comment on the amendment.
The CHAIRMAN pro tempore. Is there objection to the request of the
gentleman from New York?
There was no objection.
The CHAIRMAN. The gentleman from New York (Mr. LaFalce) is recognized
for 5 minutes.

{time} 1445

Mr. LaFALCE. Madam Chairman, I yield myself such time as I may
consume.
Madam Chairman, I certainly understand the purposes of the amendment
and it is a noble purpose. We do not want to penalize any organization
that has been successful. On the other hand, we must recognize that the
amendment will also raise some significant issues that I hope we can
address in a collegial way in conference. In a zero-fund game, this is
going to mean that other PHAs with higher crime rates would not be able
to get funds. This reverses the direction of the program.
It is nice to have something that is objective. Whenever we start
getting subjectivity into it, we make the judgmental process as to who
gets funds much more difficult. I hope we can work on this in
conference.
Mr. GARY MILLER of California. Madam Chairman, I yield myself such
time as I may consume.
Madam Chairman, I would like to respond to that. This does not
reverse the direction of the program. The program always did this for
years until about May of 1999 when HUD changed the program. What we are
saying here is the program worked before. We were working with
communities that were being funded. They were eliminating drug and
crime problems.
We changed that situation in May of last year. It is wrong. Now we
are punishing those programs that are successful. We are saying let us
change the program back to cover them for a 5-year period once they
have it under control to eliminate this problem.
Madam Chairman, I yield back the balance of my time.
Mr. LaFALCE. Madam Chairman, I yield back the balance of my time.
The CHAIRMAN pro tempore (Mrs. Emerson). The question is on the
amendment, as modified, by the gentleman from California (Mr. Gary
Miller).
The amendment, as modified, was agreed to.
Mr. LAZIO. Madam Chairman, I ask unanimous consent to strike the last
word.
The CHAIRMAN pro tempore. Is there objection to the request of the
gentleman from New York?
There was no objection.
Mr. LAZIO. Madam Chairman, I yield to the gentlewoman from New York
(Mrs. Kelly), who has a concern which she would like to address.
Mrs. KELLY. Madam Chairman, I rise to enter into a brief colloquy
with my friend, the gentleman from New York (Mr. Lazio). As a strong
supporter of the manufactured housing section of this legislation,
especially the Manufactured Housing Consensus Committee, I want to
clarify the intent of who the members of this committee should be.
To be in line with the guidelines of the American National Standards
Institute, there must be a balance of interest represented on the
manufactured housing committee. While the revised language of the bill
strives to achieve such a balance so that all affected interests have
the opportunity for a fair and an equitable participation without the
dominance of any single interest, it is unfortunate that examples of
such representation, namely industry groups such as home builders,
architects, engineers and the like, were removed from the final
legislative language.
Madam Chairman, I know it was not the intent of the committee to
exclude representation by such groups. I want to make clear my
understanding that the committee fully supports and endorses their
participation. It is vital that industry groups, such as home builders,
who in many cases are actual users of manufactured housing in that they
develop sites for the placement of manufactured homes, have a place on
the committee. It is vital that industries involved in the purchase,
construction or site development of manufactured housing, such as the
home building industry, be members of the committee to ensure that the
intent of ANSI's requirements for due process are met.
Madam Chairman, I ask my friend, the gentleman from New York (Mr.
Lazio), to confirm what the intent of the committee was on the possible
membership of the Manufactured Housing Consensus Committee.
Mr. LAZIO. Madam Chairman, I want to thank the gentlewoman from New
York (Mrs. Kelly) and I want to say that I wholeheartedly agree with
her understanding of the possible membership of the Manufactured
Housing Consensus Committee. It was the intent of our committee that
home builders, architects, and engineers would be eligible to
participate in the committee.
Mrs. KELLY. Madam Chairman, I thank my friend, the gentleman from New
York (Mr. Lazio), and I urge the passage then of this important
legislation.
Mr. LAZIO. Madam Chairman, I again ask unanimous consent to strike
the last word.
The CHAIRMAN pro tempore. Is there objection to the request of the
gentleman from New York?
There was no objection.
Mr. LAZIO. Madam Chairman, I want to say to this House that we have
the opportunity here to do what I think America wants to see us do, to
come together and to find solutions to difficult problems. They call it
the American dream, this idea of homeownership, that Americans have
embraced from its earliest years, the sense of a yearning for self-
sufficiency and independence; for a place which they could gather their
family together.
I would say to this House, as important as it is that we focus on
education, and we do that in this bill, as important as it is that we
deal with health care or a job, if at the end of the day one does not
have a place to go to to have a roof over their head, to organize their
life, to bring their family together, to discuss their problems and to
talk about their dreams, it is very difficult to walk down that pathway
of opportunity.
That is what this bill is about in the end. It is about local
flexibility and empowerment. It is about opportunity for more Americans
who want to achieve homeownership to move out of that basement
apartment and to go to their very first closing to get that key that
opens their front door and to have that sense of satisfaction that they
can say this is mine; this is the place where my children are going to
play in the backyard; where we are going to go over homework at the
kitchen table;

[[Page H1938]]

this is a place where we are going to dream for the future; it is going
to be the main investment that we ever make that we will draw against
to send our children to college, to get a better school education than
maybe we ever dreamed of, maybe to adopt the dream of starting their
own business.
It is the engine of the American dream. It is no mystery why America
leads the world in the rate of homeownership. It is not just a fiscal
restraint. It is not just the way we treat housing in the Tax Code. It
is something very deep inside America.
For many years we have tried to provide assistance to Americans for
homeownership and in many ways we have succeeded, but there are still
so many, so many Americans that are left behind. So we are trying to
embrace these new tools. We are saying to Americans who qualify for
Federal rental assistance that they will be able to use that rental
assistance to actually own their own home.
We are saying to Americans, who look at the barrier of closing costs
or down-payment needs or the points up front, that we are going to
create these loan pools that even the private sector can contribute to,
that they will be able to draw from so that they can get over the
obstacle of closing to own their own home.
It is a wonderful thing that this House can do today, to bring the
joy of homeownership to more Americans.
Madam Chairman, I remember one Habitat for Humanity event that I was
at where a woman in tears grabbed the dirt in front of this home to be
and she held it up in her fist and she said, I cannot believe this is
going to be mine.
It is not a give-away. It is a partnership. It is giving a little bit
of help to the people most in need so we can make stronger communities,
healthier communities, a better life and a better America. So I ask
this House, in a bipartisan fashion, the way this bill was put
together, to come together and pass this bill overwhelmingly; to send a
message to America that we can do very good things that affect the
quality of life; that we can overcome challenges; that we can put our
political differences aside; that we can choose empowerment and
opportunity; that we can choose consumer choice and flexibility and
local control; that we can choose healthier communities and a healthier
America.
I urge this House to pass this bill with a resounding yes vote.

Sequential Votes Postponed in Committee of the Whole

The CHAIRMAN pro tempore. Pursuant to House Resolution 460,
proceedings will now resume on those amendments on which further
proceedings were postponed in the following order: Amendment No. 4
offered by the gentleman from Oklahoma (Mr. Coburn), Amendment No. 7
offered by the gentlewoman from California (Ms. Waters) of California,
Amendment No. 10 by the gentleman from Ohio (Mr. Traficant) of Ohio,
and Amendment No. 11 offered by the gentleman from Indiana (Mr.
Souder).
The Chair will reduce to 5 minutes the time for any electronic vote
after the first vote in this series.

Amendment No. 4 Offered by Mr. Coburn

The CHAIRMAN pro tempore. The pending business is the demand for a
recorded vote on Amendment No. 4 offered by the gentleman from Oklahoma
(Mr. Coburn) on which further proceedings were postponed and on which
the noes prevailed by voice vote.
The Clerk will redesignate the amendment.
The Clerk redesignated the amendment.

Recorded Vote

The CHAIRMAN pro tempore. A recorded vote has been demanded.
A recorded vote was ordered.
The vote was taken by electronic device, and there were--ayes 72,
noes 355, not voting 7, as follows:

[Roll No. 106]

AYES--72

Aderholt
Archer
Armey
Barton
Bliley
Blunt
Boehner
Borski
Brady (TX)
Bryant
Buyer
Callahan
Cannon
Chabot
Chenoweth-Hage
Coburn
Collins
Cooksey
Cunningham
DeLay
DeMint
Doolittle
Dreier
Duncan
Goode
Goodlatte
Gordon
Goss
Graham
Gutknecht
Hastings (WA)
Hayes
Hayworth
Hill (MT)
Hoekstra
Hostettler
Hunter
Jones (NC)
Kasich
Kingston
Largent
Latham
Lewis (KY)
Linder
Manzullo
McIntosh
Miller (FL)
Moran (KS)
Nussle
Pease
Peterson (PA)
Pitts
Pombo
Portman
Radanovich
Riley
Rogan
Rohrabacher
Ryun (KS)
Sanford
Scarborough
Schaffer
Shadegg
Smith (MI)
Stump
Sununu
Tancredo
Thomas
Tiahrt
Toomey
Watts (OK)
Wolf

NOES--355

Abercrombie
Ackerman
Allen
Andrews
Baca
Bachus
Baird
Baker
Baldacci
Baldwin
Ballenger
Barcia
Barr
Barrett (NE)
Barrett (WI)
Bartlett
Bass
Bateman
Becerra
Bentsen
Bereuter
Berkley
Berman
Berry
Biggert
Bilbray
Bilirakis
Bishop
Blagojevich
Blumenauer
Boehlert
Bonilla
Bonior
Bono
Boswell
Boucher
Boyd
Brady (PA)
Brown (FL)
Brown (OH)
Burr
Burton
Calvert
Camp
Canady
Capps
Capuano
Cardin
Carson
Castle
Chambliss
Clay
Clayton
Clement
Clyburn
Coble
Combest
Condit
Conyers
Costello
Cox
Coyne
Cramer
Crowley
Cubin
Cummings
Danner
Davis (FL)
Davis (IL)
Davis (VA)
Deal
DeFazio
DeGette
Delahunt
DeLauro
Deutsch
Diaz-Balart
Dickey
Dicks
Dingell
Dixon
Doggett
Dooley
Doyle
Dunn
Edwards
Ehlers
Ehrlich
Emerson
Engel
English
Eshoo
Etheridge
Evans
Everett
Ewing
Farr
Fattah
Filner
Fletcher
Foley
Forbes
Ford
Fossella
Fowler
Frank (MA)
Franks (NJ)
Frelinghuysen
Frost
Gallegly
Ganske
Gejdenson
Gekas
Gephardt
Gibbons
Gilchrest
Gillmor
Gilman
Gonzalez
Goodling
Granger
Green (TX)
Green (WI)
Greenwood
Gutierrez
Hall (OH)
Hall (TX)
Hansen
Hastings (FL)
Hefley
Herger
Hill (IN)
Hilleary
Hilliard
Hinchey
Hinojosa
Hobson
Hoeffel
Holden
Holt
Hooley
Horn
Houghton
Hoyer
Hulshof
Hutchinson
Hyde
Inslee
Isakson
Istook
Jackson (IL)
Jackson-Lee (TX)
Jefferson
Jenkins
John
Johnson (CT)
Johnson, E.B.
Johnson, Sam
Jones (OH)
Kanjorski
Kaptur
Kelly
Kennedy
Kildee
Kilpatrick
Kind (WI)
King (NY)
Kleczka
Klink
Knollenberg
Kolbe
Kucinich
Kuykendall
LaFalce
LaHood
Lampson
Lantos
Larson
LaTourette
Lazio
Leach
Lee
Levin
Lewis (CA)
Lewis (GA)
Lipinski
LoBiondo
Lofgren
Lowey
Lucas (KY)
Lucas (OK)
Luther
Maloney (CT)
Maloney (NY)
Markey
Martinez
Mascara
Matsui
McCarthy (MO)
McCarthy (NY)
McCollum
McCrery
McDermott
McGovern
McHugh
McInnis
McIntyre
McKeon
McKinney
McNulty
Meehan
Meek (FL)
Meeks (NY)
Menendez
Metcalf
Mica
Millender-McDonald
Miller, Gary
Miller, George
Minge
Mink
Moakley
Mollohan
Moore
Moran (VA)
Morella
Murtha
Myrick
Nadler
Napolitano
Neal
Nethercutt
Ney
Northup
Norwood
Oberstar
Obey
Olver
Ortiz
Ose
Owens
Oxley
Packard
Pallone
Pascrell
Pastor
Paul
Payne
Pelosi
Peterson (MN)
Petri
Phelps
Pickering
Pickett
Pomeroy
Porter
Price (NC)
Pryce (OH)
Quinn
Rahall
Ramstad
Rangel
Regula
Reyes
Reynolds
Rivers
Roemer
Rogers
Ros-Lehtinen
Rothman
Roukema
Roybal-Allard
Royce
Rush
Ryan (WI)
Sabo
Salmon
Sanchez
Sanders
Sandlin
Sawyer
Saxton
Schakowsky
Scott
Sensenbrenner
Serrano
Sessions
Shaw
Shays
Sherman
Sherwood
Shimkus
Shows
Simpson
Sisisky
Skeen
Skelton
Slaughter
Smith (NJ)
Smith (TX)
Smith (WA)
Snyder
Souder
Spence
Spratt
Stabenow
Stark
Stearns
Stenholm
Strickland
Stupak
Sweeney
Talent
Tanner
Tauscher
Tauzin
Taylor (MS)
Taylor (NC)
Terry
Thompson (CA)
Thompson (MS)
Thornberry
Thune
Thurman
Tierney
Towns
Traficant
Turner
Udall (CO)
Udall (NM)
Upton
Velazquez
Visclosky
Vitter
Walden
Walsh
Wamp
Waters
Watkins
Watt (NC)
Waxman
Weiner
Weldon (PA)
Weller
Wexler
Weygand
Whitfield
Wicker
Wilson
Wise
Woolsey
Wu
Wynn
Young (AK)
Young (FL)

NOT VOTING--7

Campbell
Cook
Crane
Rodriguez
Shuster
Vento
Weldon (FL)

{time} 1516

Messrs. HEFLEY, GANSKE, SHAYS, BARR of Georgia, CRAMER and SAM
JOHNSON of Texas changed their vote from ``aye'' to ``no.''
Mr. ROGAN and Mr. MORAN of Kansas changed their vote from ``no'' to
``aye.''
So the amendment was rejected.

[[Page H1939]]

The result of the vote was announced as above recorded.

Announcement by the Chairman Pro Tempore

The CHAIRMAN pro tempore (Mrs. Emerson). Pursuant to the House
Resolution 460, the Chair announces that she will reduce to a minimum
of 5 minutes the period of time within which a vote by electronic
device may be taken on each amendment on which the Chair has postponed
further proceedings.

Amendment No. 7 Offered by Ms. Waters

The CHAIRMAN pro tempore. The pending business is the demand for a
recorded vote on the amendment offered by the gentlewoman from
California (Ms. Waters) on which further proceedings were postponed and
on which the noes prevailed by voice vote.
The Clerk will redesignate the amendment.
The Clerk redesignated the amendment.

Recorded Vote

The CHAIRMAN pro tempore. A recorded vote has been demanded.
A recorded vote was ordered.
The vote was taken by electronic device, and there were--ayes 60,
noes 367, not voting 7, as follows:

[Roll No. 107]

AYES--60

Abercrombie
Bishop
Brady (PA)
Brown (FL)
Carson
Chenoweth-Hage
Clay
Clayton
Clyburn
Coburn
Conyers
Cox
Cummings
Davis (IL)
DeGette
Dixon
Engel
Fattah
Filner
Gephardt
Gutknecht
Hall (TX)
Hastings (FL)
Hastings (WA)
Jackson (IL)
Jackson-Lee (TX)
Jefferson
Johnson, E. B.
Johnson, Sam
Jones (OH)
Kasich
Kilpatrick
LaFalce
Lee
Lewis (GA)
McCarthy (MO)
McDermott
McIntosh
McKinney
McNulty
Meek (FL)
Owens
Paul
Payne
Pease
Rangel
Rush
Sanders
Sanford
Scarborough
Shadegg
Slaughter
Stark
Sununu
Thompson (MS)
Thurman
Toomey
Towns
Waters
Watt (NC)

NOES--367

Ackerman
Aderholt
Allen
Andrews
Archer
Armey
Baca
Bachus
Baird
Baker
Baldacci
Baldwin
Ballenger
Barcia
Barr
Barrett (NE)
Barrett (WI)
Bartlett
Barton
Bass
Bateman
Becerra
Bentsen
Bereuter
Berkley
Berman
Berry
Biggert
Bilbray
Bilirakis
Blagojevich
Bliley
Blumenauer
Blunt
Boehlert
Boehner
Bonilla
Bonior
Bono
Borski
Boswell
Boucher
Boyd
Brady (TX)
Brown (OH)
Bryant
Burr
Burton
Buyer
Callahan
Calvert
Camp
Canady
Cannon
Capps
Capuano
Cardin
Castle
Chabot
Chambliss
Clement
Coble
Collins
Combest
Condit
Cooksey
Costello
Coyne
Cramer
Crowley
Cubin
Cunningham
Davis (FL)
Davis (VA)
Deal
DeFazio
Delahunt
DeLauro
DeLay
DeMint
Deutsch
Diaz-Balart
Dickey
Dicks
Dingell
Doggett
Dooley
Doolittle
Doyle
Dreier
Duncan
Dunn
Edwards
Ehlers
Ehrlich
Emerson
English
Eshoo
Etheridge
Evans
Everett
Ewing
Farr
Fletcher
Foley
Forbes
Ford
Fossella
Fowler
Frank (MA)
Franks (NJ)
Frelinghuysen
Frost
Gallegly
Ganske
Gejdenson
Gekas
Gibbons
Gilchrest
Gillmor
Gilman
Gonzalez
Goode
Goodlatte
Goodling
Gordon
Goss
Graham
Granger
Green (TX)
Green (WI)
Greenwood
Gutierrez
Hall (OH)
Hansen
Hayes
Hayworth
Hefley
Herger
Hill (IN)
Hill (MT)
Hilleary
Hilliard
Hinchey
Hinojosa
Hobson
Hoeffel
Hoekstra
Holden
Holt
Hooley
Horn
Hostettler
Houghton
Hoyer
Hulshof
Hunter
Hutchinson
Hyde
Inslee
Isakson
Istook
Jenkins
John
Johnson (CT)
Jones (NC)
Kanjorski
Kaptur
Kelly
Kennedy
Kildee
Kind (WI)
King (NY)
Kingston
Kleczka
Klink
Knollenberg
Kolbe
Kucinich
Kuykendall
LaHood
Lampson
Lantos
Largent
Larson
Latham
LaTourette
Lazio
Leach
Levin
Lewis (CA)
Lewis (KY)
Linder
Lipinski
LoBiondo
Lofgren
Lowey
Lucas (KY)
Lucas (OK)
Luther
Maloney (CT)
Maloney (NY)
Manzullo
Markey
Martinez
Mascara
Matsui
McCarthy (NY)
McCollum
McCrery
McGovern
McHugh
McInnis
McIntyre
McKeon
Meehan
Meeks (NY)
Menendez
Metcalf
Mica
Millender-McDonald
Miller (FL)
Miller, Gary
Miller, George
Minge
Mink
Moakley
Mollohan
Moore
Moran (KS)
Moran (VA)
Morella
Murtha
Myrick
Nadler
Napolitano
Neal
Nethercutt
Ney
Northup
Norwood
Nussle
Oberstar
Obey
Olver
Ortiz
Ose
Oxley
Packard
Pallone
Pascrell
Pastor
Pelosi
Peterson (MN)
Peterson (PA)
Petri
Phelps
Pickering
Pickett
Pitts
Pombo
Pomeroy
Porter
Portman
Price (NC)
Pryce (OH)
Quinn
Radanovich
Rahall
Ramstad
Regula
Reyes
Reynolds
Riley
Rivers
Roemer
Rogan
Rogers
Rohrabacher
Ros-Lehtinen
Rothman
Roukema
Roybal-Allard
Royce
Ryan (WI)
Ryun (KS)
Sabo
Salmon
Sanchez
Sandlin
Sawyer
Saxton
Schaffer
Schakowsky
Scott
Sensenbrenner
Serrano
Sessions
Shaw
Shays
Sherman
Sherwood
Shimkus
Shows
Shuster
Simpson
Sisisky
Skeen
Skelton
Smith (MI)
Smith (NJ)
Smith (TX)
Smith (WA)
Snyder
Souder
Spence
Spratt
Stabenow
Stearns
Stenholm
Strickland
Stump
Stupak
Sweeney
Talent
Tancredo
Tanner
Tauscher
Tauzin
Taylor (MS)
Taylor (NC)
Terry
Thomas
Thompson (CA)
Thornberry
Thune
Tiahrt
Tierney
Traficant
Turner
Udall (CO)
Udall (NM)
Upton
Velazquez
Visclosky
Vitter
Walden
Walsh
Wamp
Watkins
Watts (OK)
Waxman
Weiner
Weldon (PA)
Weller
Wexler
Weygand
Whitfield
Wicker
Wilson
Wise
Wolf
Woolsey
Wu
Wynn
Young (AK)
Young (FL)

NOT VOTING--7

Campbell
Cook
Crane
Danner
Rodriguez
Vento
Weldon (FL)

{time} 1527

Mr. HILLIARD and Mr. PALLONE changed their vote from ``aye'' to
``no.''
Mr. STARK, Ms. LEE, Mr. KASICH, Mrs. CHENOWETH-HAGE, and Mr.
SCARBOROUGH changed their vote from ``no'' to ``aye.''
So the amendment was rejected.
The result of the vote was announced as above recorded.

Amendment No. 10 Offered by Mr. Traficant

The CHAIRMAN pro tempore. The pending business is the demand for a
recorded vote on the amendment offered by the gentleman from Ohio (Mr.
Traficant) on which further proceedings were postponed and on which the
noes prevailed by voice voted.
The Clerk will redesignate the amendment.
The Clerk redesignated the amendment.

Recorded Vote

The CHAIRMAN. A recorded vote has been demanded.
A recorded vote was ordered.
The vote was taken by electronic device, and there were--ayes 225,
noes 201, not voting 8, as follows:

[Roll No. 108]

AYES--225

Ackerman
Aderholt
Andrews
Archer
Armey
Baca
Ballenger
Barcia
Bartlett
Bass
Biggert
Bilbray
Bilirakis
Bishop
Bliley
Blunt
Boehner
Bonilla
Bonior
Borski
Brady (PA)
Brown (FL)
Brown (OH)
Bryant
Burr
Burton
Buyer
Callahan
Calvert
Camp
Canady
Cannon
Cardin
Chenoweth-Hage
Clement
Clyburn
Coburn
Collins
Cooksey
Costello
Cramer
Crowley
Cubin
Cunningham
Davis (VA)
Deal
DeFazio
Delahunt
DeLay
Deutsch
Diaz-Balart
Dickey
Doolittle
Doyle
Dreier
Duncan
Edwards
Ehrlich
Emerson
Engel
English
Evans
Everett
Ewing
Fattah
Fletcher
Foley
Forbes
Ford
Fossella
Fowler
Frost
Gallegly
Gephardt
Gibbons
Gilchrest
Gillmor
Gilman
Goodling
Gordon
Granger
Green (TX)
Gutknecht
Hall (OH)
Hall (TX)
Hinojosa
Hobson
Horn
Houghton
Hoyer
Hunter
Hyde
Istook
Jackson-Lee (TX)
Jenkins
Johnson, E. B.
Jones (OH)
Kanjorski
Kaptur
Kasich
Kelly
Kennedy
Kildee
King (NY)
Kingston
Klink
Knollenberg
Kucinich
Kuykendall
LaFalce
Lampson
Latham
LaTourette
Lazio
Lee
Levin
Lewis (CA)
Lewis (KY)
Lipinski
Lofgren
Lowey
Lucas (OK)
Maloney (CT)
Maloney (NY)
Manzullo
Markey
Martinez
Mascara
McCarthy (NY)
McCollum
McCrery
McGovern
McHugh
McIntosh
McKeon
McKinney
McNulty
Menendez
Metcalf
Mica
Millender-McDonald
Miller, Gary
Mink
Moakley
Mollohan
Murtha
Nadler
Napolitano
Neal
Nethercutt
Ney
Norwood
Nussle
Oberstar
Ortiz
Ose
Owens
Packard
Pallone
Pascrell
Pastor
Payne
Pease
Peterson (PA)
Pickering
Portman
Pryce (OH)
Quinn
Radanovich
Rahall
Rangel
Regula

[[Page H1940]]

Reyes
Reynolds
Riley
Rogan
Rohrabacher
Ros-Lehtinen
Rothman
Ryan (WI)
Ryun (KS)
Sawyer
Scarborough
Schakowsky
Serrano
Sessions
Shaw
Sherman
Sherwood
Shimkus
Shuster
Sisisky
Skeen
Skelton
Smith (NJ)
Smith (TX)
Souder
Spence
Stabenow
Strickland
Stump
Sweeney
Tauzin
Taylor (MS)
Thomas
Thune
Thurman
Towns
Traficant
Visclosky
Walsh
Wamp
Waters
Watkins
Watts (OK)
Weiner
Weldon (PA)
Weller
Wexler
Wicker
Wilson
Wolf
Wynn
Young (AK)
Young (FL)

NOES--201

Abercrombie
Allen
Bachus
Baird
Baker
Baldacci
Baldwin
Barr
Barrett (NE)
Barrett (WI)
Barton
Bateman
Becerra
Bentsen
Bereuter
Berkley
Berman
Berry
Blagojevich
Blumenauer
Boehlert
Bono
Boswell
Boucher
Boyd
Brady (TX)
Capps
Capuano
Carson
Castle
Chabot
Chambliss
Clay
Clayton
Coble
Combest
Condit
Conyers
Cox
Coyne
Cummings
Davis (FL)
Davis (IL)
DeGette
DeLauro
DeMint
Dicks
Dingell
Dixon
Doggett
Dooley
Dunn
Ehlers
Eshoo
Etheridge
Farr
Filner
Frank (MA)
Franks (NJ)
Frelinghuysen
Ganske
Gejdenson
Gekas
Gonzalez
Goode
Goodlatte
Goss
Graham
Green (WI)
Greenwood
Gutierrez
Hansen
Hastings (FL)
Hastings (WA)
Hayes
Hayworth
Hefley
Herger
Hill (IN)
Hill (MT)
Hilleary
Hilliard
Hinchey
Hoeffel
Hoekstra
Holden
Holt
Hooley
Hostettler
Hulshof
Hutchinson
Inslee
Isakson
Jackson (IL)
Jefferson
John
Johnson (CT)
Johnson, Sam
Jones (NC)
Kilpatrick
Kind (WI)
Kleczka
Kolbe
LaHood
Lantos
Largent
Larson
Leach
Lewis (GA)
Linder
LoBiondo
Lucas (KY)
Luther
Matsui
McCarthy (MO)
McDermott
McInnis
McIntyre
Meehan
Meek (FL)
Meeks (NY)
Miller (FL)
Miller, George
Minge
Moore
Moran (KS)
Moran (VA)
Morella
Myrick
Northup
Obey
Olver
Oxley
Paul
Pelosi
Peterson (MN)
Petri
Phelps
Pickett
Pitts
Pomeroy
Porter
Price (NC)
Ramstad
Rivers
Roemer
Rogers
Roukema
Roybal-Allard
Royce
Rush
Sabo
Salmon
Sanchez
Sanders
Sandlin
Sanford
Saxton
Schaffer
Scott
Sensenbrenner
Shadegg
Shays
Shows
Simpson
Slaughter
Smith (MI)
Smith (WA)
Snyder
Spratt
Stark
Stearns
Stenholm
Stupak
Sununu
Talent
Tancredo
Tanner
Tauscher
Taylor (NC)
Terry
Thompson (CA)
Thompson (MS)
Thornberry
Tiahrt
Tierney
Toomey
Turner
Udall (CO)
Udall (NM)
Upton
Velazquez
Vitter
Walden
Watt (NC)
Waxman
Weygand
Whitfield
Wise
Woolsey
Wu

NOT VOTING--8

Campbell
Cook
Crane
Danner
Pombo
Rodriguez
Vento
Weldon (FL)

{time} 1537

Mr. HOLT and Mr. EHLERS, and Mrs. MALONEY of New York changed their
vote from ``aye'' to ``no.''
Messrs. DeFAZIO, KASICH, PALLONE, STRICKLAND, and Mrs. WILSON and Ms.
SCHAKOWSKY, changed their vote from ``no'' to ``aye.''
So the amendment was agreed to.
The result of the vote was announced as above recorded.

Amendment No. 11, as Modified, Offered by Mr. Souder

The CHAIRMAN pro tempore (Mrs. Emerson). The pending business is the
demand for a recorded vote on Amendment No. 11, as modified, offered by
the gentleman from Indiana (Mr. Souder) on which further proceedings
were postponed on which the ayes prevailed by voice vote.
The Clerk will designate the amendment.
The Clerk designated the amendment.

Recorded vote

The CHAIRMAN pro tempore. A recorded vote has been demanded.
A recorded vote was ordered.
The vote was taken by electronic device, and there were--ayes 299,
noes 124, not voting 11, as follows:

[Roll No. 109]

AYES--299

Aderholt
Archer
Armey
Baca
Bachus
Baker
Ballenger
Barcia
Barr
Barrett (NE)
Bartlett
Barton
Bass
Bentsen
Bereuter
Berkley
Berman
Berry
Biggert
Bilbray
Bilirakis
Bishop
Bliley
Blunt
Boehlert
Boehner
Bonilla
Bono
Borski
Boucher
Boyd
Brady (PA)
Brady (TX)
Bryant
Burr
Burton
Buyer
Calvert
Camp
Canady
Cannon
Capps
Castle
Chabot
Chambliss
Clement
Coble
Coburn
Collins
Combest
Condit
Cooksey
Costello
Cox
Cramer
Crowley
Cubin
Cunningham
Davis (VA)
Deal
Delahunt
DeLay
DeMint
Diaz-Balart
Dickey
Dicks
Dooley
Doolittle
Doyle
Dreier
Duncan
Dunn
Ehlers
Ehrlich
Emerson
English
Eshoo
Evans
Everett
Ewing
Fattah
Fletcher
Foley
Forbes
Fossella
Fowler
Franks (NJ)
Frelinghuysen
Gallegly
Ganske
Gekas
Gibbons
Gilchrest
Gillmor
Gilman
Goode
Goodlatte
Goodling
Gordon
Goss
Graham
Granger
Green (TX)
Green (WI)
Greenwood
Gutknecht
Hall (OH)
Hall (TX)
Hastings (WA)
Hayes
Hayworth
Hefley
Herger
Hill (IN)
Hill (MT)
Hilleary
Hinojosa
Hoekstra
Holden
Horn
Hostettler
Houghton
Hulshof
Hunter
Hutchinson
Hyde
Isakson
Istook
Jackson-Lee (TX)
Jefferson
Jenkins
John
Johnson (CT)
Johnson, Sam
Jones (NC)
Kanjorski
Kasich
Kelly
Kildee
King (NY)
Kingston
Klink
Knollenberg
Kolbe
Kucinich
Kuykendall
LaFalce
LaHood
Lampson
Lantos
Largent
Latham
LaTourette
Lazio
Leach
Lewis (CA)
Lewis (KY)
Linder
Lipinski
LoBiondo
Lucas (KY)
Lucas (OK)
Maloney (CT)
Maloney (NY)
Manzullo
Markey
Martinez
Mascara
McCarthy (MO)
McCarthy (NY)
McCollum
McCrery
McHugh
McInnis
McIntosh
McIntyre
McKeon
McNulty
Meehan
Meeks (NY)
Metcalf
Mica
Miller (FL)
Miller, Gary
Moakley
Mollohan
Moore
Moran (KS)
Moran (VA)
Murtha
Myrick
Napolitano
Neal
Nethercutt
Ney
Northup
Norwood
Nussle
Ortiz
Ose
Oxley
Packard
Pascrell
Pease
Peterson (MN)
Peterson (PA)
Petri
Phelps
Pickering
Pitts
Pombo
Porter
Portman
Price (NC)
Pryce (OH)
Quinn
Radanovich
Rahall
Ramstad
Regula
Reyes
Reynolds
Riley
Roemer
Rogan
Rogers
Rohrabacher
Ros-Lehtinen
Roukema
Royce
Rush
Ryan (WI)
Ryun (KS)
Salmon
Sandlin
Sanford
Saxton
Scarborough
Schaffer
Sensenbrenner
Sessions
Shadegg
Shaw
Shays
Sherwood
Shimkus
Shows
Shuster
Simpson
Sisisky
Skeen
Skelton
Smith (MI)
Smith (NJ)
Smith (TX)
Smith (WA)
Souder
Spence
Spratt
Stearns
Stenholm
Stump
Sununu
Sweeney
Talent
Tancredo
Tanner
Tauscher
Tauzin
Taylor (MS)
Taylor (NC)
Terry
Thompson (CA)
Thornberry
Thune
Tiahrt
Toomey
Traficant
Turner
Upton
Visclosky
Vitter
Walden
Walsh
Wamp
Watkins
Watts (OK)
Weiner
Weldon (PA)
Weller
Weygand
Whitfield
Wicker
Wilson
Wise
Wolf
Wynn
Young (AK)
Young (FL)

NOES--124

Abercrombie
Ackerman
Allen
Andrews
Baird
Baldacci
Baldwin
Barrett (WI)
Bateman
Becerra
Blagojevich
Blumenauer
Bonior
Boswell
Brown (FL)
Brown (OH)
Capuano
Cardin
Carson
Chenoweth-Hage
Clay
Clayton
Clyburn
Conyers
Coyne
Cummings
Davis (FL)
Davis (IL)
DeFazio
DeGette
DeLauro
Deutsch
Dingell
Dixon
Doggett
Edwards
Engel
Etheridge
Farr
Filner
Ford
Frank (MA)
Frost
Gejdenson
Gephardt
Gonzalez
Gutierrez
Hansen
Hastings (FL)
Hilliard
Hinchey
Hoeffel
Holt
Hooley
Hoyer
Inslee
Jackson (IL)
Johnson, E.B.
Jones (OH)
Kaptur
Kennedy
Kilpatrick
Kind (WI)
Kleczka
Larson
Lee
Levin
Lewis (GA)
Lofgren
Lowey
Luther
Matsui
McDermott
McGovern
McKinney
Meek (FL)
Menendez
Millender-McDonald
Miller, George
Minge
Mink
Morella
Nadler
Oberstar
Obey
Olver
Owens
Pallone
Pastor
Paul
Payne
Pelosi
Pickett
Pomeroy
Rivers
Rothman
Roybal-Allard
Sabo
Sanchez
Sanders
Sawyer
Schakowsky
Scott
Serrano
Sherman
Slaughter
Snyder
Stabenow
Stark
Strickland
Stupak
Thompson (MS)
Thurman
Tierney
Towns
Udall (CO)
Udall (NM)
Velazquez
Waters
Watt (NC)
Waxman
Wexler
Woolsey
Wu

NOT VOTING--11

Callahan
Campbell
Cook
Crane
Danner
Hobson
Rangel
Rodriguez
Thomas
Vento
Weldon (FL)

{time} 1544

So the amendment was agreed to.
The result of the vote was announced as above recorded.

[[Page H1941]]

The CHAIRMAN pro tempore (Mrs. Emerson). The question is on the
committee amendment in the nature of a substitute, as amended.
The committee amendment in the nature of a substitute, as amended,
was agreed to.
The CHAIRMAN pro tempore. Under the rule, the Committee rises.
Accordingly, the Committee rose; and the Speaker pro tempore (Mr.
LaHood) having assumed the chair, Mrs. Emerson, Chairman pro tempore of
the Committee of the Whole House on the State of the Union, reported
that that Committee, having had under consideration the bill (H.R.
1776) to expand homeownership in the United States, pursuant to House
Resolution 460, she reported the bill back to the House with an
amendment adopted by the Committee of the Whole.
The SPEAKER pro tempore. Under the rule, the previous question is
ordered.
Is a separate vote demanded on any amendment to the committee
amendment in the nature of a substitute adopted by the Committee of the
Whole? If not, the question is on the amendment.
The amendment was agreed to.
The SPEAKER pro tempore. The question is on the engrossment and third
reading of the bill.
The bill was ordered to be engrossed and read a third time, and was
read the third time.
The SPEAKER pro tempore. The question is on the passage of the bill.
The question was taken; and the Speaker pro tempore announced that
the ayes appeared to have it.

Recorded Vote

Mr. LINDER. Mr. Speaker, I demand a recorded vote.
A recorded vote was ordered.
The vote was taken by electronic device, and there were--ayes 417,
noes 8, not voting 9, as follows:

[Roll No. 110]

AYES--417

Abercrombie
Ackerman
Aderholt
Allen
Andrews
Archer
Armey
Baca
Bachus
Baird
Baker
Baldacci
Baldwin
Ballenger
Barcia
Barr
Barrett (NE)
Barrett (WI)
Bartlett
Barton
Bass
Bateman
Becerra
Bentsen
Bereuter
Berkley
Berman
Berry
Biggert
Bilbray
Bilirakis
Bishop
Blagojevich
Bliley
Blumenauer
Blunt
Boehlert
Boehner
Bonilla
Bonior
Bono
Borski
Boswell
Boucher
Boyd
Brady (PA)
Brady (TX)
Brown (FL)
Brown (OH)
Bryant
Burr
Burton
Buyer
Calvert
Camp
Canady
Cannon
Capps
Capuano
Cardin
Carson
Castle
Chabot
Chambliss
Chenoweth-Hage
Clay
Clayton
Clement
Clyburn
Coble
Collins
Combest
Condit
Conyers
Cooksey
Costello
Cox
Coyne
Cramer
Crowley
Cubin
Cummings
Cunningham
Davis (FL)
Davis (IL)
Davis (VA)
Deal
DeFazio
DeGette
Delahunt
DeLauro
DeLay
DeMint
Deutsch
Diaz-Balart
Dickey
Dicks
Dingell
Dixon
Doggett
Dooley
Doolittle
Doyle
Dreier
Duncan
Dunn
Edwards
Ehlers
Ehrlich
Emerson
Engel
English
Eshoo
Etheridge
Evans
Everett
Ewing
Farr
Fattah
Filner
Fletcher
Foley
Forbes
Ford
Fossella
Fowler
Frank (MA)
Franks (NJ)
Frelinghuysen
Frost
Gallegly
Ganske
Gejdenson
Gekas
Gephardt
Gibbons
Gilchrest
Gillmor
Gonzalez
Goode
Goodlatte
Goodling
Gordon
Goss
Graham
Granger
Green (TX)
Green (WI)
Greenwood
Gutierrez
Gutknecht
Hall (OH)
Hall (TX)
Hansen
Hastings (FL)
Hastings (WA)
Hayes
Hayworth
Herger
Hill (IN)
Hill (MT)
Hilleary
Hilliard
Hinchey
Hinojosa
Hobson
Hoeffel
Hoekstra
Holden
Holt
Hooley
Horn
Houghton
Hoyer
Hulshof
Hunter
Hutchinson
Hyde
Inslee
Isakson
Jackson (IL)
Jackson-Lee (TX)
Jefferson
Jenkins
John
Johnson (CT)
Johnson, E. B.
Johnson, Sam
Jones (NC)
Jones (OH)
Kanjorski
Kaptur
Kasich
Kelly
Kennedy
Kildee
Kilpatrick
Kind (WI)
King (NY)
Kingston
Kleczka
Klink
Knollenberg
Kolbe
Kucinich
Kuykendall
LaFalce
LaHood
Lampson
Lantos
Largent
Larson
Latham
LaTourette
Lazio
Leach
Lee
Levin
Lewis (CA)
Lewis (GA)
Lewis (KY)
Linder
Lipinski
LoBiondo
Lofgren
Lowey
Lucas (KY)
Lucas (OK)
Luther
Maloney (CT)
Maloney (NY)
Manzullo
Markey
Martinez
Mascara
Matsui
McCarthy (MO)
McCarthy (NY)
McCollum
McCrery
McDermott
McGovern
McHugh
McInnis
McIntosh
McIntyre
McKeon
McKinney
McNulty
Meehan
Meek (FL)
Meeks (NY)
Menendez
Metcalf
Mica
Millender-McDonald
Miller (FL)
Miller, Gary
Miller, George
Minge
Mink
Moakley
Mollohan
Moore
Moran (KS)
Moran (VA)
Morella
Murtha
Myrick
Nadler
Napolitano
Neal
Nethercutt
Ney
Northup
Norwood
Nussle
Oberstar
Obey
Olver
Ortiz
Ose
Owens
Oxley
Packard
Pallone
Pascrell
Pastor
Payne
Pease
Pelosi
Peterson (MN)
Peterson (PA)
Petri
Phelps
Pickering
Pickett
Pitts
Pombo
Pomeroy
Porter
Portman
Price (NC)
Pryce (OH)
Quinn
Radanovich
Rahall
Ramstad
Rangel
Regula
Reyes
Reynolds
Riley
Rivers
Roemer
Rogan
Rogers
Rohrabacher
Ros-Lehtinen
Rothman
Roukema
Roybal-Allard
Royce
Rush
Ryan (WI)
Ryun (KS)
Sabo
Salmon
Sanchez
Sanders
Sandlin
Sawyer
Saxton
Scarborough
Schaffer
Schakowsky
Scott
Serrano
Sessions
Shaw
Shays
Sherman
Sherwood
Shimkus
Shows
Shuster
Simpson
Sisisky
Skeen
Skelton
Slaughter
Smith (MI)
Smith (NJ)
Smith (TX)
Smith (WA)
Snyder
Souder
Spence
Spratt
Stabenow
Stark
Stearns
Stenholm
Strickland
Stump
Stupak
Sununu
Sweeney
Talent
Tancredo
Tanner
Tauscher
Tauzin
Taylor (MS)
Taylor (NC)
Terry
Thomas
Thompson (CA)
Thompson (MS)
Thornberry
Thune
Thurman
Tiahrt
Tierney
Toomey
Towns
Traficant
Turner
Udall (CO)
Udall (NM)
Upton
Velazquez
Visclosky
Vitter
Walden
Walsh
Wamp
Waters
Watkins
Watt (NC)
Watts (OK)
Waxman
Weiner
Weldon (PA)
Weller
Wexler
Weygand
Whitfield
Wicker
Wilson
Wise
Wolf
Woolsey
Wu
Wynn
Young (AK)
Young (FL)

NOES--8

Coburn
Hefley
Hostettler
Istook
Paul
Sanford
Sensenbrenner
Shadegg

NOT VOTING--9

Callahan
Campbell
Cook
Crane
Danner
Gilman
Rodriguez
Vento
Weldon (FL)

{time} 1602

So the bill was passed.
The result of the vote was announced as above recorded.
A motion to reconsider was laid on the table.

____________________