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,

Washington, DC.

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.

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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

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