cent of nonprofit colleges and universities were religiously affiliated and, of those, 97 percent receive public funds. The same survey found that 44 percent of the religiously affiliated nonprofit organizations delivering child services only hire staff who agree with their religious orientation, or give preference to them, and that 56 percent of the religious affiliated nonprofit colleges and universities do the same.

So this is the debate we engage in today: Does the Constitution require rolling back essential services or does it allow for improving them by letting religious organizations compete on an equal basis for Federal social service funds which they will use to help the poor and the helpless, and not to proselytize?

Finally, some critics of charitable choice argue that faith-based organizations should be required to create separate entities under section 501(c)(3) of the Internal Revenue Code before they should be allowed to compete for Federal social service funds. However 501(c)(3) status in this context is a red herring. Nothing in 501(c)(3) means an organization has to, for example, take down all religious symbols or refrain from staffing on a religious basis just because it receives a Federal grant. The provisions of 501(c)(3) allow a church or other religious organization to create an entity that is organized, governed, and funded separately, but they do not restrict what such a 501(c)(3) organization may do, other than restrict its involvement in political campaigns and require that no substantial part of its activity be devoted to lobbying. But we are not discussing political campaign work or lobbying at this hearing. We are discussing the constitutional role faith-based organizations can play to help people.

Following our April 24th hearing, which examined how States and localities were implementing existing charitable choice programs, today we explore the constitutional role of faith-based organizations in competitions for Federal social service funds. I look forward to hearing from the witnesses today, and I now yield 5 minutes to the gentleman from New York, the Ranking Member of the Subcommittee, Mr. Nadler.

Mr. NADLER. Thank you, Mr. Chairman. I especially want to thank the Chair for its consideration in holding the beginning of this hearing. As you know, a number of the Democratic Members of the Committee have a standing obligation to caucus business on Thursday morning from 9 to 10, and I greatly appreciate the Chair's indulgence in adhering to that, in dealing with that standing problem.

Today, we will explore an area of the law which is, I think it is fair to say, in great flux. Certainly the split opinion by the Supreme Court in Mitchell v. Helms demonstrates just how closely the justices are divided on the very difficult issues which surround new entanglement between government and religion.

While my sympathies are well known to my colleagues, the difficult issues with which the Court has been grappling-how much religious activity should be permitted in a publicly funded program, which program should be allowed to participate, what are the rights of program participants and employees with respect to a publicly funded benefit, how much separation, if at all, should

there be between the clearly sectarian and the clearly secular functions of an agency-are not trivial.

We would do a disservice to the Nation if we simply wished these difficulties away and pretended they did not exist.

I think Professor Laycock is correct in his observation that the framers were not necessarily thinking of government-funded social services on the scale we have today. The 18th century was a very different world from that of today and the framers could not have foreseen the sort of issues we are considering today. I think it is fair to say that on matters having to do with religion, the country was no more unified then than now, so the original intent again is at best problematic.

Having said that, I think certain principles are applicable. Certainly Madison's view as expressed in his "Memorial and Remonstrance" that it is a violation of individual religious liberty to compel one citizen to support another faith, is still valid, whether it applies to the hiring of teachers of religious instruction, as was the case in Madison's time, or in funding other pervasively sectarian activities, as Mr. Justice Thomas and three other justices hope to permit.

We are treading on very shaky ground here, and it is perhaps a good time to reflect on the fact that the free exercise clause exists not, as some have argued, to protect government from religion, but to protect religion from government and to protect the conscience of each individual from the prospect of anyone using the power or resources of the State to coerce people in any way on the most fundamental matters of belief.

Similarly, where government funding is used, issues of discrimination in employment or against potential program participants must be adequately address ed. As the Supreme Court pointed out nearly 20 years ago in the Bob Jones University case, which has been the subject of an alarming epidemic of amnesia over the last year, the United States does have a compelling interest in eliminating all vestiges of discrimination on the basis of race and, I would add, on other grounds as well, that the Congress as well as the State and local governments have found fit to include.

Public money comes from every American taxpayer regardless of race, religion, creed, national origin, disability, sexual orientation or identity and, no American should be denied employment opportunities or the ability to receive government-funded services on those bases.

Now, of course, under current law without charitable choice, sectarian organizations can and, as the Chairman pointed out with some figures, do participate in Federal Governments, but no discrimination in the spending of the Federal funds is allowed. And, contrary to what the Chair said a few minutes ago, sectarian organizations, churches, synagogues, and so forth certainly can discriminate on religious or racial or sexual grounds if they wish, but not in the spending of government funds. Any church or synagogue can say we won't have women as priests or ministers and so forth and so on. Government will not interfere with such decisions. But it is a very different thing, and under charitable choice law it is not permitted, to discriminate on the basis of sex or religion or race or anything else and who may ladle out the soup in the soup kitch

en or who may participate in drinking the soup on the basis of race, religion or anything else. And that is what we are talking about today.

There is attention in the various proposals we have seen between religious autonomy guaranteed to the participating programs and the rights of participants and employees to be free from discrimination or proselytization. What happens when there is a conflict? How are these rights balanced? The legislation is woefully silent. Perhaps our witnesses can help us clarify the rules so that there will be no doubts when the time comes to expend public money.

Finally, on the subject of religious autonomy, I genuinely fear for religious autonomy in a world without the Lemon test and without the Sherbert rule. Religious institutions are being coaxed into a devil's bargain. There are precious few constitutional restrictions on the rules government may now apply to religious institutions, and in the wake of Boerne, Congress' efforts to provide such protections by statute, an effort in which three of our witnesses were key players, seem to have come to very little. The day may well come when having permitted excessive entanglement between religious institutions and the government, there will be no protection for religion when government flexes its muscles. I do not understand why some of my conservative colleagues suddenly have so much trust in big government that they are willing to take such a phenomenal risk.

I hope that at some point we will have the opportunity to hold at least one legislative hearing to examine the nuts and bolts of the proposals before the Congress. I think proponents and opponents of some of these proposals should agree that if we are going to change the rules, we should look very carefully at the specifics before we leap.

I look forward with anticipation to the testimony of our very distinguished panel and I thank you, Mr. Chairman.

Mr. CHABOT. Thank you.

Mr. CHABOT. Are there other Members of the panel that would like to make opening statements? Okay. If not, we will introduce the witnesses here this morning. We want to thank you all again for coming and again apologize for starting a little bit late.

Our first witness today is Carl H. Esbeck, Senior Counsel to the Deputy Attorney General at the Department of Justice. Mr. Esbeck, who works with the White House Office of Faith-Based and Community Initiatives, will offer the opinion of the Department on the constitutional role of faith-based organizations in competing for Federal social service program funds. Mr. Esbeck is presently on leave from the University of Missouri School of Law in Columbia, Missouri where he has taught courses in civil procedure, constitutional law, Federal civil rights litigation, and the first amendment and church State relations. Mr. Esbeck was formerly Director of the Center for Law and Religious Freedom, an advocacy organization and public interest law firm located in Washington, D.C. Mr. Esbeck has published widely on first amendment religious issues and he has been active in the development of charitable choice principles, and we welcome you here this morning.

Our second witness will be H. Douglas Laycock, who holds the Alice McKean Young Regent's Chair in Law and is Associate Dean

for Research at the University of Texas School of Law at Austin. Professor Laycock is a leading scholar on the law of religious liberty. He has argued many cases on religious liberty, including those before the United States Supreme Court. Professor Laycock is also a Member of the American Law Institute and an elected Fellow of the American Academy of Arts and Sciences. We welcome you also this morning.

Our third witness is Rabbi David N. Saperstein. Rabbi Saperstein is an Adjunct Professor of Law and Director and Counsel of the Religious Action Center of Reform Judaism at the Georgetown University Law Center. We welcome you here as well, Professor and Rabbi.

And our fourth and final witness is Ira C. Lupu, professor of law at the George Washington University School of Law. Professor Lupu's writings are primarily in the field of constitutional law with an emphasis on the religion clauses of the first amendment. Professor Lupu has also served as Professor-in-Residence on the appellate staff of the civil division of the U.S. Department of Justice, where he represented the government in a variety of cases in the courts of appeal.

We want to thank you all again for appearing this morning. And I would like to ask each of you to please try to summarize your testimony in 5 minutes or less, and, without objection, your written statement will be made part of the permanent hearing record. And we actually, as you probably all know, have a lighting system, and you have 5 minutes. When the yellow light comes on you have got 1 minute to kind of wrap it up, and when the red light comes up we would appreciate that you wrap up at that point. We will give you a little flexibility, but if you can keep within that, we would certainly appreciate it. And our first witness would be Mr. Esbeck.

STATEMENT OF CARL H. ESBECK, SENIOR COUNSEL TO THE DEPUTY ATTORNEY GENERAL, UNITED STATES DEPARTMENT OF JUSTICE

Mr. ESBECK. Thank you, Chairman and Members of the House. I do appreciate Mr. Nadler's opening remarks which I think sets that right tone that there is an exploration here where we do, I think, have several points of common ground and I want to touch on each one of those, at least as I see it.

First, it is easy to forget as we get into the constitutional issues that this is about people and, of course, people who are poor or have special needs. These faith-based groups are specially positioned to reach hard to reach people. I think that is because they have high access and high credibility. And by high access, I mean they are right there in the neighborhood. They are working with people who are their neighbors in that community. These are people that they cross paths with at their local grocery store. And by high credibility, I mean these are the leaders of that community in which the people in need are living and these leaders are highly trusted. They have experience with them. They are well known. Charitable choice provides an option to take into account these specially positioned faith-based organizations. Charitable choice doesn't claim to be the only way, or it is just another way.

Second, everyone here wants faith-based organizations to retain their religious character. No one wants to give them funding beyond their means and then raise hopes and have them dashed. No one wants to silence what they call their prophetic voice, which is their way of saying they speak out and criticize government and culture, and no one wants them to become dependent on government funding and lose their religious moorings. And that is why charitable choice spends a good deal of time surrounding these organizations with their protection for autonomy. If they can retain their freedom, then they will be free to continue doing their good work.

A third area of common ground, no one wants to use government money to force religion upon somebody else, least of all beneficiaries. The statute is drafted to take care of that.

Fourth, there is continuing interest, maybe growing interest, in exploring indirect forms of aid. And this is sort of like how the G.I. Bill works. There is interest in it because there are less constitutional restrictions as to how the faith-based organizations ultimately use those resources.

And fifth and last, no one wants to do harm to that venerable American tradition, the separation of church and State. But the question here is not choosing between separation of church and State and something else; instead, the debate is over what do we mean by separation. Charitable choice, as you know, says separation doesn't entail discrimination against those faith-based groups that have a high religious character; so it shifts the question.

No longer is it an exploration of those their character, trying to ascertain are you somehow too religious, whatever that line means. Instead, the question is what can you do, can you do it, are you willing to do it in accordance with the statutory and constitutional parameters?So what are those-well, I am sure we will explore them in more depth in a bit.

But first, there can be no government aid diverted to sectarian activity; and second, no one receiving welfare benefits can be compelled to participate in sectarian activities against their will. Charitable choice funding is not for every faith-based organization. If there is a total integration of sectarian activities and delivery of social services, then surely they cannot participate in direct funding. But for those faith-based organizations that are able and willing to follow those rules, then charitable choice provides a valuable option, another option for raising people out of poverty.

Mr. CHABOT. Thank you very much Mr. Esbeck. [The prepared statement of Mr. Esbeck follows:]

PREPARED STATEMENT OF CARL H. ESBECK

INTRODUCTION

By letter of May 22, 2001, the House Subcommittee on the Constitution, Committee on the Judiciary, invited the views of the U.S. Department of Justice concerning statutory and constitutional issues raised by § 1994A (charitable choice) of H.R. 7, The Community Solutions Act of 2001. Thank you for the invitation. This document is the Department's response to the Subcommittee's letter.

Charitable choice is already part of three federal social service programs. The provision first appeared in the Personal Responsibility and Work Opportunity Rec