[Congressional Record (Bound Edition), Volume 146 (2000), Part 4]
[House]
[Pages 4779-4804]
[From the U.S. Government Publishing Office, www.gpo.gov]


[[Page 4779]]

      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 without 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 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. 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:


[[Page 4780]]

       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.
  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.

[[Page 4781]]

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.
  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

[[Page 4782]]

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. 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.

[[Page 4783]]


  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 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.

[[Page 4784]]

  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 
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.

[[Page 4785]]

  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.
  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 codifies 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

[[Page 4786]]

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. Madam 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 unprecedented 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 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

[[Page 4787]]

     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 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,

[[Page 4788]]

     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 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\

[[Page 4789]]

       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 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

[[Page 4790]]

     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 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.

[[Page 4791]]

       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 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

[[Page 4792]]

     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 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,

[[Page 4793]]

     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 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.

[[Page 4794]]

       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 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

[[Page 4795]]

     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 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

[[Page 4796]]

     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, 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

[[Page 4797]]

     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 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

[[Page 4798]]

     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 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.

[[Page 4799]]

  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 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.

[[Page 4800]]

  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

[[Page 4801]]

backyard; where we are going to go over homework at the kitchen table; 
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)

[[Page 4802]]



                             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.
  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

[[Page 4803]]


     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
     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, changed their vote from ``aye'' to ``no.''
  Messrs. DeFAZIO, KASICH, PALLONE, STRICKLAND, Mrs. WILSON, Mrs. 
MALONEY of New York, 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)

[[Page 4804]]


     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.
  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.

                          ____________________