PREPARED STATEMENT OF CHRISTOPHER E. ANDERS, LEGISLATIVE COUNSEL, I. INTRODUCTION The American Civil Liberties Union greatly appreciates the opportunity to submit this statement expressing our concern that H.R. 7, which expands charitable choice to twelve new federal program areas, would undermine nearly sixty years of federal civil rights protections against most uses of federal money by persons engaged in employment discrimination based on religion. This statement focuses solely on how H.R. 7 would subject employees, and applicants for employment, to possible discrimination by federally-funded religious organizations. If H.R. 7 passes, these government-funded religious organizations would be able to fire, or refuse to hire, an employee simply because he or she does not belong to the organization's religionor because he or she does not follow all of the religion's practices. While the harm to employment civil rights laws is one of the most pernicious results of H.R. 7, it is not the only problem caused by the bill's radical approach to government funding of religion. The ACLU will later provide the Subcommittee with further analysis of other harms that H.R. 7 would cause to both beneficiaries of federal programs and to religious organizations themselves.1 The ACLU's opposition to H.R. 7's government funding of religion is consistent with the ACLU's long history of protecting the dual rights of freedom of religion and freedom from the governmental establishment of religion. Founded in 1920 to protect the civil liberties and civil rights embodied in the Bill of Rights and Equal Protection Clause, the ACLU is a nonprofit, nonpartisan membership organization that has fought in Congress and the courts to preserve or restore protection for claims of religious exercise, while also opposing governmental efforts to establish religion. The ACLU believes that H.R. 7 is a severe attack on both the right to freedom of religion and the right to be free from the governmental establishment of religion. II. FRAGILITY OF THE LONG NATIONAL COMMITMENT TO BARRING MOST FEDERAL FUNDS FROM PERSONS DISCRIMINATING BASED ON RELIGION The anti-civil rights employment provision of H.R. 7,2 which would allow federal funds to go to religious organizations that require their employees to adhere to the religious practices of the organization, is a broad assault on core employment civil rights protections that date back to President Franklin D. Roosevelt. For nearly sixty years, the nation has committed itself to one of its oldest civil rights principles-that the federal government will not provide federal funds to persons who discriminate against others. However, the very brevity of the employment provision in H.R. 7 reveals the fragility of those protections. Only a few words can gut longstanding protections. Although Title VII of the Civil Rights Act of 1964 allows religious organizations to use their own private money to prefer to employ members of their own religion, 42 U.S.C. §§ 2000e-1(a), 2000e-2(e)(2), federal funds generally cannot go to anyoneincluding religious organizations that discriminate against employees and potential employees based on religion.3 However, the ban on federal funds going to contractors and grantees that discriminate in employment based on religion cannot be found in any single nondiscrimination statute. Instead, the ban is a patchwork of 1 Other concerns about H.R. 7's government funding of religion include the: (i) potential it would create for discrimination against beneficiaries of social programs and for discrimination by the government among various religions; (ii) conflict between religious tenets the bill protects and professional or technical standards that could result in erosion of such standards; (iii) absence in H.R. 7 of any meaningful criteria for providing access to non-religious alternatives for those who object to religion-based services; and (iv) whether laws that protect employees, other than civil rights laws, would be preempted by the sweeping requirement that religious institutions receiving federal funding be allowed to require employees to adhere to religious practices. 2 The principal employment provision of H.R. 7 provides that: "[i]n order to aid in the preservation of its religious character, a religious organization that provides assistance under a program described in subsection (c)(4) may, notwithstanding any other provision of law, require that its employees adhere to the religious practices of the organization." H.R. 7, 107th Cong. §201 at pp. 22-23 (2001). 3 However, these civil rights protections do not block all religiously-affiliated organizations from receiving federal money to provide social services. In fact, many religiously-affiliated groups have participated for decades in federal and state-funded activities. Those organizations, including Catholic Charities, Lutheran Social Services, and the United Jewish Communities, have all agreed to follow the nondiscrimination provisions that apply to other organizations receiving federal funds. Any religious organization that follows the lead of any of these religiouslyaffiliated groups can participate in federal programs by abiding by the same rules that apply to all other federally-funded service providers. constitutional, programmatic statutory restrictions, executive orders, and regulations. The first piece of the patchwork against religious discrimination in employment by persons receiving federal funds could hardly have had a more historic start. Almost exactly sixty years ago, as the nation mobilized for war, the great civil rights and labor leader A. Philip Randolph was organizing the first March on Washington for Civil Rights. A. Philip Randolph, Why We March (Nov. 1942), reprinted in Civil Rights Since 1787 at 303-06 (Jonathan Birnbaum & Clarence Taylor, eds. 2000). The goals of the march included integrating African-Americans and other minorities into the national economic and political life as the country prepared for a war that would require all to sacrifice. Id. After discussions between the Roosevelt Administration and the March committee, Mr. Randolph cancelled the march and President Roosevelt agreed to sign a bold new executive order protecting persons based on race, religion, color, and national origin. Id. Thus, more than sixty years ago this June-more than two decades before the signing of the Civil Rights Act of 1964-President Roosevelt ordered all federal agencies to "include in all defense contracts hereafter negotiated by them a provision obligating the contractor not to discriminate against any worker because of race, creed [religion], color, or national origin." E.O. 8802 (June 25, 1941). President Roosevelt later expanded the civil rights provision to include all government contracts, and Presidents Truman, Eisenhower, Kennedy, and Johnson strengthened its protections. See Contractors Ass'n of Eastern Pa. v. Sec'y of Labor, 442 F.2d 159, 171-74 (3d Cir. 1971), cert. denied sub nom. Contractors Ass'n of Eastern Pa. v. Hodgson, 404 U.S. 854 (1971) (describing the history of the executive orders barring employment discrimination by federal contractors). The current executive order requiring contractors to agree not to discriminate in employment based on religion or other characteristics is Executive Order No. 11246, which President Johnson signed and Presidents Nixon and Carter amended. Id. The common objective of all seven presidents from both political parties was to keep taxpayers' money from going to persons who discriminate-including on the basis of religion. Id. Congress and the Executive Branch have bolstered the employment civil rights protections provided by the executive order on contractors by adding statutes and regulations affecting a wide range of federal contract and grants programs. See, e.g., infra at 8-9. For sixty years, the basic principle has been that the federal government should not be financing persons who engage in religious discrimination in employment against others. However, perhaps because the national commitment to keeping federal funds from those who discriminate based on religion in employment has been so longstanding, Congress never enacted a statute codifying the prohibition for all federal programs and activities. The result is that the patchwork of constitutional, statutory, regulatory, and executive order protections against federal funds going to those who discriminate based on religion is far more fragile than other civil rights protections. Thus, one of the oldest and most important civil rights protections is also one of the most vulnerable to legislative attack-in this instance by the employment provision of H.R. 7. III. HARM CAUSED BY THE EMPLOYMENT PROVISION OF H.R. 7 TO CIVIL RIGHTS PROTECTIONS A. Description of the Exemption in H.R. 7 "4 H.R. 7 exempts religious organizations participating in twelve enumerated federal program areas from all laws prohibiting employment discrimination based on religion. Specifically, H.R. 7 provides that: "[i]n order to aid in the preservation of its religious character, a religious organization that provides assistance under a program described in subsection (c)(4) may, notwithstanding any other provision of law, require that its employees adhere to the religious practices of the organization." H.R. 7, 107th Cong. §201 at pp. 22-23 (2001) (emphasis added). It then adds a savings paragraph that specifically protects several statutes from the sweeping scope of the general provision allowing a religious organization to require employees to adhere to the organization's religious practices. The paragraph saves several civil rights statutes by specifically providing that they would continue to bar at least certain discrimination against participants in federal programs based on race, color, 4 The same subsection also adds a paragraph stating that the federal funding does not affect a religious organization's exemption from Title VII of the Civil Rights Act of 1964. H.R. 7 at p. 23 (citing 42 U.S.C. §§ 2000e-1, 2000e-2(2)). However, given the preceding paragraph's broad exemption from all laws prohibiting employment discrimination based on religion, the Title VII reference is superfluous. national origin, disability, and age. Id. at p. 23. However, that savings paragraph would not bar any discrimination based on religion, sex, pregnancy status, marital status, or sexual orientation, and would not bar all race, color, or national origin discrimination. Infra at 12-14. B. H.R. 7 Threatens Two Sets of Civil Rights Laws The sweeping exception for religious organizations to receive federal funds while also requiring employees to adhere to specific religious practices would affect two sets of civil rights protections. Specifically, it would (i) allow religious discrimination by government-funded contractors and grantees even when employees and applicants for employment would otherwise have protection against religious discrimination, and (ii) would allow those same federally-funded contractors and grantees to claim that enforcing adherence to a particular religious practice authorizes the employer to fire, or refuse to hire, a person for a characteristic other than the employee's religion, such as race, color, national origin, sex, pregnancy status, sexual orientation, or marital status. 1. A New Exception to Civil Rights Laws Protecting Against Religious Discrimination by Federally-Funded Contractors and Grantees: If H.R. 7 becomes law, employees and applicants for employment at government-funded religious contractors and grantees could be subjected to religious discrimination without recourse to any legal protection. These contractors and grantees would be able to hire or fire an employee simply because his or her religion differs from the religion of the government-funded religious service provider. At present, there are no generally applicable civil rights statutes prohibiting religious discrimination in employment by persons receiving federal funds. The broadest protection against religious discrimination in employment by federal contractors and grantees is provided by Executive Order No. 11246, supra at 4-5. However, the "notwithstanding any other provision of law" clause in H.R. 7 would provide an exception for religious organizations to that longstanding executive order and its implementing regulations. Likewise, it would provide an exception to all other agency-level administrative prohibitions against religious discrimination. Moreover, the employment provision would undermine some of the only statutes providing protection against religious discrimination caused by persons receiving federal funds. Those statutory nondiscrimination provisions are all embedded in the authorizing language for specific federal programs. Although most authorizing statutes passed by Congress do not contain programspecific nondiscrimination statutes, a majority of the twelve programs that would be subject to the employment provision of H.R. 7 currently have statutory nondiscrimination requirements that protect against religious discrimination in employment. Perhaps not coincidentally, H.R. 7 applies to some of the only federal social service programs that have specific nondiscrimination provisions. Specifically, H.R. 7 will undermine the statutory nondiscrimination requirements that, in whole or in part, prohibit religious discrimination in the following federally-funded programs: the Omnibus Crime Control and Safe Streets Act of 1998, 42 U.S.C. § 3701 et seq. (includes a religious nondiscrimination provision at 42 U.S.C. §3789d(c)); federally assisted housing programs, 42 U.S.C. §13601 et seq. (includes a nondiscrimination provision requiring compliance with all civil rights laws at 42 U.S.C. § 13603(b)(2)); the Workforce Investment Act of 1998, 29 U.S.C. § 2801 et seq. (includes a religious nondiscrimination provision at 29 U.S.C. § 2938); domestic violence programs, see, e.g., 42 U.S.C. § 10603 (includes a religious nondiscrimination provision at 42 U.S.C. § 10604(e)); the Child Care Development Block Grant Act of 1990, 42 U.S.C. 9858 et seq. (includes a modified religious nondiscrimination provision at 42 U.S.C. § 9858L); the Community Development Block Grant Program of the Housing and Community Development Act of 1974, 42 U.S.C. §5301 et seq. (includes a nondiscrimination provision requiring compliance with all civil rights laws at 42 U.S.C. § 5304 (b)(2)); and the Job Access and Reverse Commute grant program of the Federal Transit Act of 1998, 49 U.S.C. §5309 note (includes a religious nondiscrimination provision at 49 U.S.C. §5332(b)). By creating exceptions to these statutory nondiscrimination provisions, H.R. 7 rips the patchwork of federal employment civil rights protections against religious discrimination by federally-funded contractors and grantees. 2. A New Exception to Civil Rights Laws Protecting Persons Against Discrimination Other Than Religious Discrimination: The other set of civil rights laws that are vulnerable to harm caused by the broad exception for discrimination authorized by H.R. 7 could include civil rights laws protecting persons on the basis of characteristics such as race, sex, pregnancy status, sexual orientation, or marital status. By authorizing federally-funded religious contractors and grantees to require employees to "adhere to the religious practices of the organization," H.R. 7 would allow feder ally-funded religious organizations to ask applicants for jobs such interview questions as: What is your religion? Is your spouse the same race as you? Are you married or divorced? Was your marriage annulled? Are you pregnant? What does your church teach about sexual orientation? Are you willing to work only with members of your own sex? Are you gay or straight? A wrong answer would mean no job— even though the employer is federally-funded. These concerns are not far-fetched. Several federal courts have held that the provision in Title VII of the Civil Rights Act of 1964, that permits religious organizations to prefer members of their own religion, includes the right to discriminate in employment against persons who do not adhere to the teachings and tenets of the religion. For example, a court held that a religiously-affiliated school could dismiss an unmarried, pregnant teacher because premarital sex was against the church's teachings. Boyd v. Harding Academy of Memphis, Inc., 88 F.3d 410 (6th Cir. 1996). In a similar decision, a court found that a religiously-affiliated school could fire a teacher who did not have her marriage annulled in accordance with the religion's practices. Little v. Wuerl, 929 F.2d 944, 951 (3rd Cir. 1991). In addition, another court held that a religiously-affiliated school could fire a school counselor after she attained a leadership position in a church that accepted gay and lesbian members. Hall v. Baptist Memorial Health Care Corp., 215 F.3d 618, 625 (6th Cir. 2000). Although these cases concerned only privately-funded activities, H.R. 7 would allow similar defenses when federally-funded religious contractors and grantees engage in similar discrimination. Perhaps the best known case of a religiously-affiliated organization claiming a religious right to discriminate based on a characteristic other than religion involved Bob Jones University's claim that it had a religious reason to discriminate based on race because it subscribed to religious beliefs against marriage between persons of different races. Bob Jones Univ. v. United States, 461 U.S. 574, 604 (1983). After nearly a decade of litigation, the Supreme Court held that the federal government could deny Bob Jones University a preferred tax status because the government's compelling interest in eradicating racial discrimination in education outweighed the university's interest in its discrimination. Id. However, the sweeping "notwithstanding any other provision of law" clause in the employment subsection of H.R. 7 could call even Bob Jones Univ. into question because the provision could push aside all other civil rights protections. 3. H.R. 7's Provision Saving Other Federal Civil Rights Laws Will Have No Effect on Many Discrimination Claims: The protection seemingly afforded by the savings provision of H.R. 7 could be illusory for many persons subjected to employment discrimination by federally-funded contractors and grantees. The third paragraph of H.R. 7's employment subsection sets the only limitation on the scope of the subsection's broad exemption from civil rights laws for federally-funded religious organizations. It provides that "nothing in this section alters the duty of a religious organization to comply with the nondiscrimination provisions" of federal statutes barring discrimination based on race, color, national origin, disability, and age in federal programs and activities, and based on sex and visual impairment in certain federally-funded educational activities. H.R. 7, § 201 at p. 23. At first glance, the paragraph may appear to provide significant protection to persons suffering employment discrimination caused by federally-funded religious organizations. However, a closer examination shows what protections are missing. Specifically, the paragraph saves absolutely no laws protecting persons against discrimination based on religion, sex, pregnancy status, marital status, or sexual orientation in any federally-funded program or activity. In addition, even the provision specifically saving the applicability of Title VI of the Civil Rights Act of 1964, which protects persons participating in federal programs and activities from discrimination based on race, color, or national origin, provides incomplete protection against employment discrimination. The problem is that, although Title VI protects against some race-based employment discrimination by federally-funded religious organizations, Title VI itself has a statutory exception prohibiting federal agency action "with respect to any employment practice of any employer, employment agency, or labor organization except where a primary objective of the Federal financial assistance is to provide employment." 42 U.S.C. 5 The inclusion of Title IX of the Education Amendment of 1972's prohibition of discrimination based on sex in federally-funded educational activities as a statute saved against the effect of H.R. 7's employment provision is particularly odd and superfluous given that Title IX has never applied to religious educational institutions. See 20 U.S.C. § 1681(a)(3) (exempting religious educational institutions if compliance "would not be consistent with the religious tenets of such organization"). Thus, the savings paragraph of H.R. 7 provides no relief for persons suffering discrimination based on sex. §2000d-3. Thus, the provision saving Title VI does not close every door to a federally-funded religious organization claiming that it has a right to hire persons of a particular race because only employees of a particular race can adhere to the religion's practices, or to hire only persons who agree to such practices as not dating or marrying persons of a different race. The porous savings paragraph of H.R. 7 does not even bar all race discrimination. IV. CONCLUSION: CURRENT LAW WORKS The ACLU strongly urges the Subcommittee to continue the sixty-year history of banning federally-funded religious discrimination in employment, by deleting the charitable choice provisions from H.R. 7. There is no need to change the present approach to awarding federal contracts and grants. The anti-civil rights provisions of H.R. 7 benefit only those religious groups who both want federal money and want to discriminate, but it will have no effect on the eligibility of the many religiouslyaffiliated groups, such as Catholic Charities, Lutheran Social Services, and the United Jewish Communities, that already receive federal funds because they follow the same employment civil rights laws that apply to every other federally-funded service provider. The possibility that government funded religion will result in federal funds going to persons who discriminate against others is a risk that this Subcommittee can and should avoid. PREPARED STATEMENT OF THE ANTI-DEFAMATION LEAGUE The Anti-Defamation League is pleased to provide testimony as the House Judiciary Subcommittee on the Constitution conducts hearings on "charitable choice" programs and government funding of faith-based organizations. So-called "charitable choice" programs are constitutionally suspect and even if they were not, such programs are bad public policy and may negatively impact the vitality of religion in America. THE ANTI-DEFAMATION LEAGUE The Anti-Defamation League has long been a lead voice advocating for the separation of church and state. Founded in 1913 to "to stop the defamation of the Jewish people and to secure justice and fair treatment to all citizens alike," ADL has worked tirelessly to fight anti-Semitism, racism and bigotry (including religious intolerance), to advocate for good will and mutual understanding among Americans of all creeds and races, and to safeguard the rights and liberties of all Americans. To this end, and to the end of the general stability of our democracy, ADL advocates for the separation of church and state and the right to the free exercise of religion. As Americans, as Jews, and as advocates for the rights of religious minorities across America, we urge Congress and state officials to place a moratorium on further efforts to pass and implement "charitable choice," so that a full examination of these initiatives can take place. In this regard, we welcome these first congressional hearings on "charitable choice." Despite the fact that Congress has enacted "charitable choice" provisions into law several times since 1996, it has acted without a single hearing on the subject until today. WHAT THIS DEBATE IS AND IS NOT ABOUT This debate is not about whether faith groups play an important role in this country in caring for the poor, the needy, the homeless, and the elderly. The debate is not about how well faith-based organizations perform their social welfare and public health services. This debate is also not about whether faith in a higher being can help addicts conquer addictions or the jobless find jobs. This debate is not even about whether the government should provide funding to assist "religiously-affiliated" groups in meeting our basic social needs. Instead, this debate is about freedom from government intrusion into religious life in America. It is about preserving the freedom of religion guaranteed by the United States Constitution, and it is about the government-free marketplace of ideas which has empowered religion to experiment with new ideas and new ways of doing things especially in the area of social services. In short, this debate is about preserving and protecting the fundamental right of all Americans to freely practice their religion and live free of unwanted governmentsponsored pressure to conform to any one religious ideology. |