KF27 сору CONTENTS Mr. David N. Saperstein, Adjunct Professor of Law, Director, Religious Ac- tion, Center of Reform Judaism, Georgetown University Law Center (III) CONSTITUTIONAL ROLE OF FAITH-BASED ORGANIZATIONS IN COMPETITIONS FOR FEDERAL SOCIAL SERVICE FUNDS Thursday, June 7, 2001 HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON THE CONSTITUTION, COMMITTEE ON THE JUDICIARY, The Subcommitteee met, pursuant to call, at 10 a.m., in Room 2141, Rayburn House Office Building, Hon. Steve Chabot [Chairman of the Subcommitteee] presiding. Mr. CHABOT. The Committee will come to order. This is the Subcommitteee on the Constitution. I am Steve Chabot, the Chairman of the Subcommittee. Also present is Jerry Nadler from New York, the Ranking Member of the Subcommittee. We have some other Members who are down at the White House at a signing ceremony on the tax cut bill, and some of our Democratic colleagues will be here shortly as well, but we are going to get started. I want to apologize to the witnesses. We are running a little bit late here, but the President of course had his schedule, and that was a very important ceremony. I know some of us would have liked to have been there as well, but we felt we needed to be here. This is the second in a series of hearings to be held by this Subcommittee on the President's faith-based initiative. The subject matter of this particular hearing is the constitutional role of faithbased organizations in competitions for Federal social service funds. While the first amendment to the Constitution provides that the government shall not establish a particular religion, or religion over nonreligion, the first amendment also provides that the government shall not prohibit the free exercise of religion. Consequently, government must ensure that Members of organizations seeking to take part in government programs designed to meet basic and universal human needs are not discriminated against because of their religious views. The simple principles of charitable choice allow for the public funding for faith-based organizations with demonstrated ability to meet the basic needs of their neighbors in trouble, while preserving the religious character of those organizations by allowing them to choose their staff, board Members and methods. These principles also protect the rights of conscience of program beneficiaries by ensuring that alternative providers that are unobjectionable to them on religious grounds are always available. (1) Charitable choice simply means equal access. Charitable choice is not a new idea. Existing charitable choice programs passed by the Congress and signed into law by President Clinton have benefited thousands of persons in need without raising constitutional concerns in their implementation. My own State of Ohio has benefited greatly from charitable choice programs. Taxes are so high in part because the government funds and administers social service programs that have for most of American history been run largely by faith-based organizations at the local level. Today, a family with two earners pays over 40 percent of their budget in taxes, more than they spend on their own food, clothing, and housing combined. When the government takes so much, little is left for those families to give to the local charities, including faith-based organizations. At the same time, the government too often excludes out of hand faith-based organizations from the receipt of government funds, even when such organizations can help meet basic human needs most effectively and in accordance with both the free exercise of religion and the establishment clause. Charitable choice programs seek to address this problem. Charitable choice principles recognize that it is wrong to assume that religious people can't be trusted to follow rules against using Federal funds for proselytizing activase, and on that basis deny them equal opportunities. Charitable choice principles also recognize that people in need should have the benefit of the best social services available, whether the providers of those services are faith-based or otherwise. That is the goal: helping the tens of thousands of Americans who need help in this country. Some have tried to divert attention from the goal of helping people in need by raising the specter of federally funded discrimination. As the argument goes, religious organizations should not be allowed to maintain their religious character through hiring decisions if they receive Federal funds for the purpose of helping others. But the right of religious organizations to take religion into account when hiring staff has long been settled. That right is enshrined in the Civil Rights Act of 1964 and that right was upheld by a unanimous Supreme Court, including Justices Brennan and Marshall. As the discussions of charitable choice programs have progressed, however, some opponents have objected that Federal funds should not be allowed to find their way to organizations that maintain their religious character through hiring decisions. That is a truly radical notion. It is not a recipe for maintaining the status quo but, rather, a recipe for withdrawing Federal funds from, among other things, religiously affiliated colleges and universities, religiously affiliated hospitals and religiously affiliated day-care centers, all of which already receive Federal funds through a variety of Federal programs and all of which are an essential part of our education, health-care and child-care systems in this Nation. One survey found that 51 percent of nonprofit organizations delivering child services were religiously affiliated and, of those, 82 percent received public funds. The survey also found that 70 per |