Statement of the Hon. Jerrold Nadler, a Representative in Congress from the State of New York

Testimony Before the Subcommittee on Human Resources and
Subcommittee on Select Revenue Measures
of the House Committee on Ways and Means

Hearing on H.R. 7, the "Community Solutions Act of 2001"

June 14, 2001

I want to thank the Chairs and Ranking Members for the opportunity to address an issue that is of great importance to this nation and to the preservation of our first freedom. As the Ranking Democratic Member of the Judiciary Committee's Subcommittee on the Constitution, I have been very involved in the examination of this legislation, and of other proposals to alter the manner in which religiously-affiliated institutions and faith-based programs interact with government.

I think it is important to stress that both government and religious organizations have a long and productive history of providing needed services to those most in need in our society. I do not think that anyone is today arguing that these relationships ought to be severed or curtailed. What is in question is whether the nature of that relationship should be radically altered, and if so, what the consequences would be for the rights of the most vulnerable of our neighbors.

Recently, our Subcommittee examined the current state 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 divided the Justices are on the very difficult issues which surround any 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 programs should be allowed to participate, what are the rights of program participants and employees vis-a-vis the 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 that they did not exist.

Madison's view, as expressed in his Memorial and Remonstrance, that it is a violation of individual religious liberty to compel a 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 and it is perhaps a good time to reflect on the fact that the Establishment 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 them in any way on the most fundamental matters of belief.

Where government funding is used, issues of discrimination in employment or against potential program participants, must be adequately addressed. 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 that the Congress, as well as state and local governments, have found fit to include. Public money comes from every American taxpayer, regardless of race, religion, creed, national origin, disability, gender, sexual orientation or identity, and no American should be denied employment opportunities or the ability to receive government funded services on those bases.

There is a tension 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. We clearly want religious institution to be free from government meddling. We do not want the government to tell a house of worship who can officiate at religious exercises or who can teach the faith. No one wants to tamper with that fundamental principle. Congress, in enacting Title VII of the Civil Rights Act of 1964 carved out an exception for religious institutions for this reason.

But when religious institutions qua religious institutions become the purveyors of social services, what happens where there is a conflict? How are the rights of the religious institution, the employee and the program participant balanced? The legislation is woefully inadequate in addressing these problems which go to the heart of the religious liberty and civil rights interests of all concerned. It is especially a problem when the service government purchases from a faith-based organization is not purely secular in nature.

For example, there are drug treatment programs run by the Nation of Islam or by some Christian groups, and I am sure by other faiths, where the religious activity and the religious conversion of the individual, is the cure for addiction. To say that we are funding a secular service when the people who are trying to beat drug addiction, people who are about as vulnerable as anyone in this society, are going to a program which tells them that they must accept a particular faith in order to get their lives on track, is pure fiction. Similarly, where you allow commingling of funds and activities, so that food is provided with public funds, then there is a break for prayer, and then the secular activity is continued strains credulity. It is an invitation for abuse of the public fisc and for those who need help the most and who are least able to object.

H.R. 7, incidentally, does say that a secular alternative must be provided to anyone seeking a particular service who requests one. Prof. Laycock, and other Majority witnesses, agreed that, in order to protect the religious liberty of program participants, this must be a part of the plan. He said that without guaranteeing such a secular alternative, the program would be a "fraud." But how does this square with reality? The bill can say it, but it provides no new funds for the alternative. In fact, the President's budget necessitates cuts in many of these programs, and many of those programs do not provide services to anyone who needs them now. Have any of you ever tried to get a constituent who wanted to clean up into drug treatment? There are long waiting lists for these programs which receive both public and private funds. Will Congress impose yet another unfunded mandate on state and local governments, or is this language meaningless? The Rev. Donna Lawrence Jones, an African American Methodist Minister from Philadelphia, who runs a faith-based program, and who was a Majority witness before our Subcommittee in support of H.R. 7, was very blunt when asked about the effectiveness of faith based programs. She told the Members that Congress would need to provide the necessary funds for these services if we wanted these programs to succeed. G-d can work miracles, but soup kitchens need money to buy soup, and drug treatment programs need to hire qualified counselors and pay rent.

I think many members approve of the various tax incentives for individuals to make donations to charitable programs, but these were not included in the big tax cut bill the President just signed. What was included was an elimination of the estate tax which has provided a tremendous incentive for the wealthy to engage in estate planning which included charitable gifts. Will we have the money to do all of this, and will it be a net gain for charities after the elimination of the estate tax? I hope this Committee, which has jurisdiction over such matters, considers these questions carefully and reports to the rest of us what you have found.

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 is precious few constitutional restrictions on the rules government may now apply to religious institutions. In the wake of Boerne, Congress' efforts to provide such protections by statute - an effort in which three of our witnesses were key players - seems to have come to naught. The day will 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 my conservative colleagues suddenly have so much trust in big government that they are willing to take such a phenomenal risk.