In its discussion of the Establishment Clause, the Court noted that it has "held that a significant factor in upholding governmental programs in the face of Establishment Clause attack is their neutrality toward religion." 10 Moreover, the Court noted that the suggestion that treating the religious youth group on an equal basis with secular groups "would damage to the neutrality principle defies logic. For 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.'" 11

The Court addressed several other aspects of the Establishment Clause challenge, the most relevant of which for this discussion is the concern over whether granting a religious entity a government benefit-even as a matter of neutrality-would be perceived as government endorsement of religion. The Court emphatically rejected this assertion stating: "We decline to employ Establishment Clause jurisprudence using a modified heckler's veto, in which a group's religious activity can be proscribed on the basis of what the . . . members of the audience might misperceive."12 While the question of to what degree religious groups may benefit from public resources was at issue in the Good News litigation, it is also the case that the government was being asked to permit a religious group to enjoy a relatively small and indirect benefit from public resources the use of an otherwise empty public school classroom. 13 In the case of Mitchell v. Helms, decided one year ago,14 the issue was whether the Establishment Clause would permit religious schools to benefit from government expenditures-arguably a closer analog to the issues raised in H.R.7. In Helms, like Good News, six of the nine justices came down squarely on the side of the neutrality view of the Establishment Clause. 15 The issue before the Court was the constitutionality of a federal grant program which allows local education agencies to use federal funds for the purchase of supplementary educational materials, including textbooks and computers, for schools within their jurisdiction. 16 Because the aid was also made available to parochial schools within the jurisdiction, it was challenged as a violation of the Establishment Clause. 17 The Court rejected this challenge.

Justices Thomas, Rehnquist, Kennedy and Scalia rejected the challenge on the basis of a neutrality-centered understanding of the Establishment Clause without any qualifications. For these justices, so long as secular government aid is provided to religious institutions on the basis of religion-neutral criteria it does not violate the Establishment Clause, and the constitutionality of currently enacted and pending charitable choice laws is unquestionable.

Justice O'Connor, joined by Justice Breyer, also invoked the principle of neutrality, but with qualifications. 18 Inasmuch as this concurrence was essential to the Court's holding, it can be said that it is the O'Connor opinion that is controlling in Helms. At the same time, it must be noted that Justice O'Connor did not write a concurring opinion in the Good News case taking exception to the majority's strong focus upon the neutrality principle-as she did in Helms.

Working with the framework she developed previously in Agostini v. Felton, 19 Justice O'Connor determined that the program at issue did not violate the Establishment Clause because it furthered a secular purpose, did not have the primary effect

10 2001 WL 636202 at 7, quoting Rosenberger v. Univ. of Virginia, 515 U.S. 819, 839 (1995). 11 Id.

12 2001 WL 636202 at 8.

13 Another possible distinction is that the Good News Club possessed a compelling Free Speech claim in its case, that serves as a counterweight to the Establishment Clause concerns. The anemic reading of the Free Exercise Clause afforded by the current Court, see City of Boerne v. Flores, 117 S.Ct. 2157 (1997), unfortunately provides no such counterweight, although it should.

14 530 U.S. 793, 120 S.Ct. 2530 (2000).

15 This position is clearly enunciated by the plurality opinion of Justices Thomas, Rehnquist, Scalia and Kennedy and is at the core of the concurrence by Justices O'Connor and Breyer.

16 Chapter 2 of the Education Consolidation and Improvement Act of 1981, Pub. L. 97—35, 95 Stat. 469, as amended, 20 U.S.C. § 7301-7373.

17 Many public interest organizations, including the UOJCA, filed friend of the court briefs in the Helms case. Not surprisingly, those who question the neutrality principle today in the context of charitable choice also questioned it there. It is worth noting that the Solicitor General, on behalf of Secretary of Education Richard Riley, argued in support of the program's constitutionality. See, http://supreme.lp.findlaw.com/supreme-court/docket/decdocket.html#98-1648. 18 Justice O'Connor was not prepared to accept what she viewed as the plurality's "treatment of neutrality [as a] factor of singular importance" above other factors developed in the Agostini case. 120 S. Ct. at 2556.

19 521 U.S. 203 (1997), upholding a government funded program for secular special education teachers to teach in parochial schools. Writing for the Court's majority in Agostini, Justice O'Connor revised the much-maligned three prong test of Lemon v. Kurtzman, 403 U.S. 602 (1971).

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of advancing religion,20 and did not raise the likelihood that an "objective observer" 21 would believe the program was a governmental endorsement of a particular religion. It is important to note that, as part of this analysis, Justice O'Connor, like the Helms plurality, explicitly rejected the precedents of Meek v. Pittinger22 and Wolman v. Walter,23 which had held even the capability for (as opposed to the actual) diversion of government aid to religious purposes to be sufficient grounds to render an otherwise neutral aid program an Establishment Clause violation.24 Finally, Justice O'Connor stressed that the aid provided under the education grant program was "secular, neutral and non-ideological," supplemented funds from private sources, and was expressly prohibited from being used for religious instruction purposes. 25

Taking all of these considerations together, it is possible to construct a regime under which faith-based organizations may receive government social service grants in a manner consistent with the latest interpretation of the Establishment Clause.26 This regime is evidenced in the previously enacted charitable choice laws and in the pending Community Solutions Act, H.R.7. The eligibility criteria for receiving a grant are religion neutral. The grant program serves the secular purpose of providing social welfare services to needy individuals. The grant funds are expressly prohibited from being "expended for sectarian worship, instruction or proselytization." 27 And Justice O'Connor's sophisticated “objective observer" would not believe that government support for the faith-based provider under this legislation constituted the endorsement of the particular religion.28

Moreover, the bill's accounting and auditing requirements are a safeguard against the diversion of funds for religious purposes, as well as an appropriate means of ensuring that public funds are expended for their specifically intended programmatic purposes. 29

Free Exercise of Religion Considerations; For Program Beneficiaries

There are other safeguards in charitable choice laws that are not necessitated by the Establishment Clause, but by the Constitution's Free Exercise Clause-a feature of the First Amendment that ought to carry equal weight to the Establishment Clause but, for a variety of reasons, often seems forgotten-even by the Supreme Court. 30

20 For Justice O'Connor, the question of whether an aid program has the primary effect of advancing religion is determined by whether: a. the aid is actually diverted for religious indoctrination; b. the eligibility for program participation is made with regard to religion; and c. the program creates excessive administrative entanglement.

21 Justice O'Connor's "objective observer" is not the typical person on the street, but a person "acquainted with the text, legislative history, and implementation of the statute." Wallace v. Jaffree, 472 U.S. 38, 76 (1985).

22 421 U.S. 349 (1975).

23 433 U.S. 229 (1977).

24 120 S. Ct. at 2558. Justice O'Connor notes that the plurality bases its reasoning for this point on the Court's precedents that have allowed government aid to be utilized to access religious instruction, specifically Witters v. Washington, 474 U.S. 481 (1983), and Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1 (1993). O'Connor correctly notes that those cases relied heavily on the "understanding that the aid was provided directly to the individual student who, in turn, made the choice of where to put that aid to use," 120 S. Ct. at 2558, as opposed to a per-capita, direct aid program at issue in Helms. With regard to this issue in this context of direct aid to faith-based social service agencies, see below at note 22.

25 120 S. Ct. at 2569.

26 Of course, Good News Club v. Milford, Mitchell v. Helms and the long line of school/religion cases that came before it pose Establishment Clause questions squarely in the area of K-12 education, where the Court has been most sensitive to Establishment Clause concerns. It is quite plausible that an assessment of the constitutionality of charitable choice programs would employ more relaxed criteria than those discussed in any of these cases.

27 H.R.7 §201(i).

28 H.R.7, §201(c)(3).states that the receipt of funds by a religious organization "is not and should not be perceived as an endorsement by the government of religion."

29 These last two provisions lessen the need for the aid to flow on the basis of private and independent choices discussed above, note 18. At the same time, it is certainly the case that any "voucherized" mechanisms, as opposed to direct grants, for charitable choice will satisfy the conditions set out by Justice O'Connor in Helms in this regard. From a policy standpoint, however, a voucher-based approach has two principle shortcomings; it reinforces the non-neutral treatment of religious entities and it biases against newer participants and programs who cannot overcome start-up costs while waiting for vouchers to be presented by beneficiaries.

30 Members of this Committee are well aware of the Court's recent apathy toward the Free Exercise Clause beginning with Employment Division v. Smith, 474 U.S. 872 (1990), resulting in the passage of the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb. "RFRA" was struck down by the Court in City of Boerne v. Flores, 117 S.Ct. 2157 (1997) to which congress, led by members of this Committee, responded last year with the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc.

As members of a minority religion in this country, we in the Orthodox Jewish community are terribly sensitive to the issue of religious coercion in general, and certainly in situations where government support, albeit indirect, is involved. We believe government should bolster the "first freedom" of religious liberty at every opportunity. Thus, we would insist that there be adequate safeguards to prevent any eligible beneficiary from being religiously coerced by a government-supported service provider. We believe that a requirement that each beneficiary be entitled to a readily accessible alternative service program and that each beneficiary be put on specific notice that they are entitled to such an alternative is the proper method for dealing with this issue. Moreover, as a condition for receiving federal assistance, faith providers must agree not to refuse to serve an eligible beneficiary on the basis of their religion or their refusal to hold a particular religious belief. These safeguards are contained in H.R.7.31

Free Exercise of Religion Considerations; For Faith-Based Providers

There are also critical religious liberty considerations with regard to the protections afforded to religious organizations by the Constitution and federal civil rights laws. As you are already aware, the one that has received considerable attention from critics of the faith-based initiative is the thirty-seven year old federal law32 permitting religious organizations to hire employees on the basis of religion.33 A few basic points must be made with regard to this argument which, I believe, will set the record straight and refute the accusation that suggests that all American houses of worship are, in fact, houses of bigotry.

As the members of this Committee are well aware, the Civil Rights Act of 1964 is the great bulwark against objectionable acts of discrimination and Title VII of that Act bans discrimination in employment on the basis of race, ethnicity, gender, religion and national origin. It was the very same architects of modern civil rights law who created a narrow exemption in the 1964 Act permitting churches, synagogues and all other religious organizations to make hiring decisions on the basis of religion.34

It would be absurd, to say the least, to suggest that a Catholic parish could be subjected to a federal lawsuit if it refused to hire a Jew for its pulpit. In 1972, still the heyday of civil rights reforms, Congress expanded the statutory exemption to apply to virtually all employees of religious institutions, whether they serve in clergy positions or not. The Free Exercise Clause demands this broad protection, and in 1987, the Supreme Court unanimously upheld the Title VII exemption as constitutional.35

This well-established law has now become a central feature of the opposition to charitable choice; so much so that the interest groups who have joined together to fight charitable choice over the last few years have called themselves the "Coalition Against Religious Discrimination" and decry the fact that this initiative will “turn back the clock on civil rights."

31 Some have suggested that allowing a beneficiary to opt out of the faith-related portions of the faith-based agency's program while being entitled to partake of the secular portions of the program is an appropriate safeguard. We believe this is insufficient. It would force beneficiaries to constantly assert their objection in contexts where that might be difficult, if not awkward. The best safeguard, in the view of the UOJCA, for the religious "objector" is to facilitate his or her participation in an acceptable alternative program as is provided in H.R.7 § 201(f)(1).

32 A recent survey conducted by the Pew Forum on Religion and Public Life noted broad support for the faith-based initiative overall, but concerns over permitting religious social service providers to receive government funds while continuing to possess the right to hire on the basis of religion. At no point, however, was any information offered to the respondents apprising them of the limited nature of the exemption, see below, or its creation as part of the Civil Rights Act of 1964. See, http://pewforum.org/events/0410/report/topline.php3.

33 Section 702 of the Civil Rights Act of 1964, as amended 42 U.S.C. §2000e-1, provides in relevant part: "This subchapter shall not apply. to a religious corporation, association, educational institution or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities."

34 Religious institutions remain bound by prohibitions against employment discrimination on the basis of race, ethnicity and the like.

35 Corp. of Presiding Bishop v. Amos, 483 U.S. 327 (1987). The majority opinion assumed only "for the sake of argument" that the § 702 exemption as enacted in 1964, prior to its 1972 expansion by congress, was sufficient to meet the requirements of the Free Exercise Clause, 483 U.S. at 336, while Justice Brennan, joined by Justice Marshall, suggested that the broader exemption was also supported by Free Exercise requirements; he noted that "[r]eligion included important communal events for most believers. They exercise their religion through religious organizations, and these organizations must be protected by the [Free Exercise][Clause." 483 U.S. at 341, quoting Laycock, Towards a General Theory of the Religion Clauses, 81 Colum. L. Rev. 1373, 1389 (1981).

In fact, what is happening here is savvy political gamesmanship, not substantive argument. These very same opponents have lost their argument for the strictest view of church-state separation in the courts and in Congress. After all, the charitable choice laws that I described earlier received bipartisan support in the face of their protestations. Thus, they have cast about for a more potent political argument, and have found it in invoking the evils of discrimination-something all Americans rightly oppose.

But the assumption underlying the opponents' assertion is that faith-based hiring by institutions of faith is equal in nature to every other despicable act of discrimination in all other contexts. This is simply not true.

In fact, in the incredibly diverse and fluid society that is America 2001, religious groups are increasingly open and reflective of that diversity. There are now black Jews, Asian Evangelicals and white Muslims and these trends will only increase. 36 This is because, at their core, religious groups are supposed to care not about where you come from or what you look like, only what you believe.37

Religious institutions are thus compelled to ignore a person's heredity and champion his or her more transcendent characteristics.38 Those who appreciate the role of religious institutions in America should resist the easy equation the opponents assert, for its implications are dangerous indeed. After all, a defining element of the civil rights era was a commitment to root out invidious forms of discrimination not only in public institutions, but in the private sector-at lunch counters, in motel rooms and on bus lines. If faith institutions' hiring practices are so terribly wrong, are we not obligated to oppose them however we can irrespective of whether they receive federal funds? If, as the critics suggest, your church and my synagogue are such bigoted institutions, why do we offer them the benefit of tax-exempt status? Why do we afford their supporters tax deductions for their contributions? Why do we hallow their role in society as we do?

There are other arguments to be made against the faith-based initiative over which we may reasonably differ. Some people may hold fast to a vision of stricter separation of church and state-even in the face of Supreme Court decisions to the contrary, while others may believe that the best way to serve Americans in need is solely through government agencies. We ought to vigorously debate these points as we have at this hearing. But slandering our sacred institutions with the charge of bigotry is unacceptable and must be ruled out of bounds.

A second rejoinder, with regard to the specific goals of this policy initiative, is important as well. If the goal of charitable choice is to leverage the unique capacities of faith-based providers with government grants, to force them to dilute their religious character is the same as saying you don't believe in the whole enterprise.39 The critics, obviously do not, but we believe that, carefully considered and properly structured, expanding the partnership between government and faith-based social service agencies is a critical component of a strategy to bring new solutions to America's social welfare challenges.

Conclusion

At the end of the day, the debates surrounding the faith-based initiative come down to questions of cynicism versus hope. The cynics see a slippery slope down every path; some see deeply religious people as untrustworthy-incapable of following regulations and perpetually plotting to proselytize their neighbor, while others see every civil servant as a regulator lacking restraint just waiting to emasculate America's religious institutions.

But if we set our minds-and our hearts-to it, we can find a way to be more hopeful. After all, what this is really about is bringing some new hope and some real help to people in need through a new avenue.

36 See Diana Eck, A New Religious America, (Harper-Collins, 2001).

37 Secular groups that are ideologically driven-from liberal to conservative-function in a similar manner and enjoy an analogous constitutional protection for their hiring practices under the freedom of expressive association, also recognized under the First Amendment. Thus, even though Planned Parenthood may receive government grants, it cannot be compelled to hire prolifers.

38 Of course, one cannot overlook the fringe groups such as the Church of the Creator and Aryan Church that propound a "theology" of racial and ethnic hatred and hold themselves out as "religions." They are despicable and give mainstream religions a bad name. But we don't generally make our public policy decisions on the basis of the radical extremist; we afford everyone the freedom of speech even though it will benefit the neo-Nazi or the flag-burner. This approach should not be abandoned here.

39 Again in Vice President Gore's words, "the religious character [of these organizations] that is so often the key to their effectiveness." Speech to Salvation Army. See also, Jeffrey Rosen, Religious Rights, The New Republic, February 26, 2001.

Chairman HERGER. Thank you very much, Mr. Diament.

And now we will hear from Brent Walker, executive director of the Baptist Joint Committee on Public Affairs.

Mr. Walker.

STATEMENT OF J. BRENT WALKER, EXECUTIVE DIRECTOR, BAPTIST JOINT COMMITTEE ON PUBLIC AFFAIRS, AND ADJUNCT PROFESSOR OF LAW, GEORGETOWN UNIVERSITY LAW CENTER

Mr. WALKER. Thank you, Mr. Chairman, for this opportunity to testify on a matter as important as religious liberty and the separation of church and State.

I am both a lawyer and ordained Baptist minister. I also serve as adjunct professor of law at Georgetown University Law Center, where I teach a seminar in church-State relations. But today, I speak only on behalf of the Baptist Joint Committee.

The Baptist Joint Committee is 65 year-old group that serves 14 different Baptist bodies, focusing exclusively on matters relating to religious liberty and the separation of church and State.

We take seriously both religion clauses in the First amendment-No Establishment and Free Exercise-as essential guarantors of what we think is God-given religious liberty.

The Baptist Joint Committee joins others in applauding President Bush's recognition of religion's vital role in addressing social ills, but we believe religion will be harmed, not helped, by redirecting billions in government money to fund pervasively religious enterprises.

So we oppose charitable choice and Title II of H.R. 7, not because we are against the delivery of faith-based social services but because we desire to protect religious liberty.

The problems with charitable choice are many and let me name several of them.

First of all, charitable choice is unconstitutional. It promotes religion in a way that breaches the wall of separation between church and State. The Supreme Court has long said that government financial aid to pervasively religious organizations, even ostensibly for secular purposes, violates the Establishment Clause of the First amendment.

And with all due respect to my friend Nathan Diament, I think there is a big difference between the Good News case, which simply said that government must accommodate private religious speech, between that and actually advancing a religious practice and message by paying for it.

Second, charitable choice results in excessive entanglement between government and religion. It is an iron law of American politics that what government funds, government regulates. And normally that is a good thing, to provide for accountability of tax dollars. But it raises serious concerns when government becomes entangled in the affairs of religion.

This is what a Virginia pastor friend of mine meant, I think, when he asked government not to give us any pats on the back,