Statement of Richard T. Foltin, Legislative Director and Counsel,
Office of Government and International Affairs, American Jewish Committee
My name is Richard Foltin. I am Legislative Director and Counsel in the Office of Government and International Affairs of the American Jewish Committee, the nation's premier human relations organization with over 100,000 members and supporters and chapters in 32 cities across the United States. I submit this statement on behalf of the American Jewish Committee to the joint hearing of the House Ways and Means Subcommittee on Human Resources and Subcommittee on Select Revenue Measures in order to present AJC’s perspective on certain of the issues presented by H.R.7, the "Community Solutions Act of 2001."
As members of the Subcommittees well know, on January 29, 2001, President George W. Bush issued two executive orders that began implementation of one of his major policy priorities, expansion of the involvement of "faith-based organizations" in the provision of government-funded social services. The first executive order created a new White House Office of Faith-Based and Community Initiatives, tasked with establishing policies, priorities, and objectives in promoting this policy. The second directive, coordinated with the provisions of the first, charged each of five designated Cabinet departments to set up an in-house office in order to identify "barriers" to the participation of faith-based organizations in the delivery of social services provided under the aegis of that department, barriers that could include the department’s standing regulations and practices, and make recommendations for reforms to remove those barriers. This process of review and recommendation is expected to be completed in the coming weeks.
The President’s unveiling of his faith-based initiative has given rise to a storm of controversy, with concerns expressed by advocates on both the right and left as to the implications of this approach for church-state separation, civil-rights policy, and the autonomy of religious institutions. This controversy has taken place, however, with much still unclear as to the specifics of how President Bush’s vision of an expanded partnership of government and religious institutions will operate. But even if we do not know the details of the President’s program, many of its likely elements are to be found in the "charitable choice" construct first enacted as part of the 1996 welfare reform law,1 an approach subsequently passed by Congress and signed into law by President Clinton in several other social services bills2 and included, in somewhat altered form, in H.R.7.
We share and commend the desire to deal constructively with society’s ills that has led President Bush to develop his faith-based initiative and that, no less, has motivated Representatives Watts and Hall to introduce H.R.7. But the "charitable choice" approach to government funding of social services is, in our view, an unconstitutional breach of the principle of separation of church and state and just plain bad public policy.
The Problems with "Charitable Choice"
The history of social services in this country began with religious institutions, and the partnership between religiously affiliated institutions and government in the provision of those services is a venerable one. Catholic Charities, not to mention many Jewish agencies across this land, have been engaged in such public-private partnerships for many years. The norm has been for these 501(c)(3) organizations to provide government-funded, secular social services in a fashion that does not involve proselytization, does not require religious worship, and does not discriminate on the basis of religion with respect to the employees they hire to provide their services or the recipients of those services. And these religiously-affiliated organizations have been able to do so without divesting themselves of their religious identities, while continuing to make available privately-funded, separately offered religious activities. Thus, Catholic hospitals, which receive public funds, have crosses on their premises, and Jewish homes for the elderly, which also receive public funds, have mezuzoth on the doors and hold Shabbat services on Saturday mornings.
Far from objecting to this history of partnership, the American Jewish Committee, in its 1990 Report on Sectarian Social Services and Public Funding, termed the involvement of the religious sector in publicly-funded social service provision as "desirable to the extent it is consistent with the Establishment Clause. It creates options for those who wish to receive the services, involves agencies and individuals motivated to provide the services, and helps to avoid making the government the sole provider of social benefits."
Our concerns about "charitable choice," then, do not reflect any lack of high regard for the important work that religious institutions do in providing social services nor an effort to erect an impassible barrier to cooperation between these institutions and the government in the provision of those services. Rather, we are opposed to "charitable choice" because it eliminates long-standing and important church-state and anti-discrimination safeguards that have historically been in place when religiously affiliated organizations are engaged in provision of government-subvented services.
Contrary to long-standing practice and judicial precedent, "charitable choice" permits houses of worship and other pervasively religious institutions to receive taxpayer dollars for provision of social services. In 1988, in Bowen v. Kendrick, even as the United States Supreme Court upheld as constitutional the participation of religiously affiliated organizations that are not themselves pervasively sectarian in a federally funded program on the assumption that the program would be implemented "in a lawful, secular manner,"3 the Court cited precedents holding that aid flowing to "pervasively sectarian" organizations "normally may be thought to have a primary effect of advancing religion" because "there is a risk that government funding, even if it is designated for specific secular purposes, may nonetheless advance the pervasively sectarian institution’s ‘religious mission."4 The Court’s reference to risks attendant on government funding of pervasively religious institutions was grounded in a core concern to which the First Amendment’s prohibition on government establishment of religion was addressed, that the state not be allowed to utilize its taxing authority to fund religion.
The principle articulated in Bowen v. Kendrick remains in place. As recently as last year, a majority of the Court in Mitchell v. Helms5 – two Justices who concurred in the holding allowing the loan of federally-funded computers to religious schools, joined by three dissenting Justices – reaffirmed that there are special concerns associated with the flow of government funds to pervasively religious organizations. As Justice O’Connor noted in her concurring opinion, "Our concern with direct monetary aid [to religious schools] is based on more than just [concern about] diversion [of tax-funded aid to religious use]. In fact, the most important reason for according special treatment to direct money grants is that this form of aid falls precariously close to the original object of the Establishment Clause’s prohibition."6
And, beyond those concerns, always applicable when government funds flow to pervasively religious institutions, "charitable choice" presents an additional problem: When institutions with a thoroughly religious environment provide social services, recipients of those services may well be coerced, either explicitly or tacitly, to take part in religious activities as a price of receiving help. Proponents of "charitable choice" have pointed to several provisions usually found in the construct, as affording sufficient protection against such coercion occurring. These include prohibitions on the use of program funds for "sectarian worship, instruction or proselytization" and on discrimination against beneficiaries on the basis of religion, as well as the requirement that beneficiaries of social services shall be entitled to have those services provided by a secular agency if they so desire. But none of these "protections" are sufficient.
As to the prohibitions on use of funds for sectarian purposes and on discrimination, it is not reasonable to expect, in the context of pervasively religious institutions, a separation between the provision of secular social services for which taxpayer dollars are used and the religion-teaching activities of those organizations. Moreover, nothing in "charitable choice" precludes privately funded religious activities from taking place in and around the services paid for with public funds in a fashion that will suggest strongly to beneficiaries that these are activities in which they ought to be engaged. And, as to the requirement that there be available alternative secular providers, it is, frankly, difficult to believe that those alternative providers will always be reasonably available, if available at all, particularly in rural or homogenous areas. It is important to recall as well, with respect to these "protections" that the recipients of services provided under "charitable choice" are often in extremis. They may not clearly understand their options and their rights, and, even if they do so understand, they may be reluctant to take steps that might delay or obstruct their receipt of badly needed services.
These concerns were reinforced when, early this year, the press reported the statement of Administration officials that, under the President’s plan, "programs funded by faith-based organizations could include religious content – such as Bible reading – so long as taxpayer money was used for lights, chairs or other nonreligious expenses,"7 suggesting that the prohibition on the use of public funds for religious purposes was regarded as nothing more than a bookkeeping formality. Even more troubling were the reports on testimony offered at a House Government Reform subcommittee hearing on "charitable choice" held on May 23rd. At that hearing, John Castellani, executive director of Teen Challenge, a religiously infused Christian substance abuse program, is said to have stated that some Jews participating in the program returned to the Jewish faith while others had become "completed Jews," i.e., had accepted Jesus.8 Aside from the sheer offensiveness of the suggestion that Jews who have remained true to their own faith are somehow not "complete," this testimony underlines the alarms we have raised – that, whatever the technical restrictions on their operations, pervasively religious groups receiving government funds, like Teen Challenge, will simply be unable or unwilling to disassociate their religion-teaching mission from the provision of the social services for which they are receiving government funds. There could be no clearer a violation of core constitutional concerns than for taxpayer dollars to flow to a program that includes such proselytizing.
"Charitable choice" also presents a significant potential for fostering divisiveness among various faith groups as they compete for public funding, a potential that will only be multiplied as government officials charged with determining with whom to contract or renew contracts are placed in the role of deciding which religion "works better" in dealing with the social problems to which public programs are addressed. It seems almost inevitable that, whatever claims may be made that contracts will be allocated on the basis of merit, in any given community the religious groups most likely to receive funds will be those associated with "mainstream" faiths. And, even if the contracts are allocated on a totally objective basis, there is likely to be sharp distrust and suspicion that this is not the case.
"Charitable choice" allows religious providers to make employment decisions based on religion with respect to the employees hired to provide taxpayer-funded services. Religious institutions are appropriately permitted to prefer co-religionists in hiring decisions, a limited exemption from the provisions of Title VII of the Civil Rights Act of 1964 that recognizes the powerful religious liberty interests involved. But the explicit extension of that exemption to cover employees providing publicly funded services, as part of a program premised on substantial expansion of the role of pervasively religious organizations in social services provision, runs counter to fundamental civil rights principles.9 And H.R.7 goes even further in this problematic direction through its inclusion of a vague and broad provision – seemingly applicable even to religious organizations not eligible for the aforementioned exemption afforded by Title VII – that "a religious organization that provides assistance under [designated federal programs]… may, notwithstanding any other provision of law, require that its employees adhere to the religious practices of the organization." In addition, the concern that beneficiaries will feel compelled to participate in religious activities to which they are not otherwise inclined can only be heightened when government-funded social services are provided only by persons of the same faith as the religious institution operating the program.
Further, despite its provisions intended to protect the religious character of institutions that receive funding, it is hard to see how "charitable choice" will not ultimately lead to an undermining of the distinctiveness, indeed the very mission, of religious institutions. With government dollars comes government oversight; faith-based organizations will inevitably be held accountable for the use of the dollars they receive just as any other recipient of government funds would be. This intrusion into the affairs of churches and other pervasively religious organizations is exactly the type of entanglement of religion and state against which the Constitution guards. Moreover, if the provisions of "charitable choice" invoked by some proponents as sufficient safeguards against coercion or misuse of government funds for religious purposes are to be taken seriously, we will see a degree of entanglement of government in the affairs of the church (or the synagogue) in a fashion we have not seen before. Pervasively religious organizations will be subject to all manner of intrusive examination to ensure that the services they are providing are not "too religious" or that the funds they receive are not somehow diverted to prohibited activities.
We have spoken of the paradigm that preceded "charitable choice" – provision of government-funded social services through religiously affiliated (and, of course, secular) organizations, along with other long-standing safeguards – as a preferable approach, indeed one so preferable that it can fairly be said that "charitable choice" is a solution in search of a problem. But there are other ways in which government can cooperate with religious organizations, including those which are pervasively religious, to address our pressing social needs.
On February 27, 2001, AJC and the Feinstein Center for American Jewish History at Temple University issued a landmark report, "In Good Faith: A Dialogue on Government Funding of Faith-Based Social Services," that grew out of a two-year initiative funded by the Pew Charitable Trusts aimed at finding common ground among diverse religious and public interest groups on government funding of social services provided by religious organizations. The report was initially signed by seventeen groups (others have since joined on as well), many of which had participated in the lengthy process, including organizations representing Jews, Baptists, Evangelicals, Catholics and Muslims.
While there were important areas of agreement concerning the parameters for government funding of religious organizations that provide social services, at the end the groups remained deeply divided on "charitable choice" and the report reflected that division. Nevertheless, the report pointed to nonfinancial modes of support the government can afford religious organizations, such as, among other things, providing information to the public about available programs, affording organizations access to education and training opportunities, creation of community-wide task forces, and encouraging charitable contributions through appropriate tax relief. This last approach, one supported by many groups on both sides of the "charitable choice" debate, is reflected in portions of President Bush’s faith-based initiative and in Title I of H.R.7.
The "In Good Faith" report also included some important points of agreement as to the considerations that should apply when government funds social services, again against the background of disagreement on "charitable choice" itself, and a discussion of how non-government community support can be provided to the work of faith-based organizations. A copy of the report is appended for your information.
In conclusion, there is a conceptual paradox at the heart of "charitable choice." It is an approach that seeks to allow government to utilize the spiritual ministry of churches, synagogues and other pervasively religious institutions as a tool in the provision of social services while, at the same time, assuring that the programs are administered in a fashion that protects beneficiaries of these services from religious coercion and protects religious institutions from undue interference by the state. This is an approach to social services provision that is untenable because of the practical – to say nothing of the constitutional –problems posed by any effort to reconcile these inconsistent goals. And, given all of these problems that "charitable choice" presents, the irony is that it is an approach that is simply unnecessary.
Responsibility and Work Opportunity Reconciliation Act. Public Law 104-193
2 Community Services Block Grant Act, Public Law 105-285 (1998); Children's Health Act of 2000, Public Law 106-310 (2000); and New Markets Venture Capital Program Act, Public Law 106-554 (2000).
3 487 U.S. 589 (1988).
4 Id. at 610 (citations omitted).
5 530 U.S. 793 (2000)
6 Id. at 856
7 "Bush's Limits Set on Faith-Based Plan: Religious Aspects Still Face Criticism," Washington Post, Jan. 31, 2001, p. A4
8 "A Reference to Jews Heats Up Aid Debate," New York Times, May 25, 2001, p. A19, col. 1.
9 In addition, allowing pervasively religious organizations to have the benefit of the Title VII exemption while receiving taxpayer funds to provide social services may have the paradoxical effect of reducing, not increasing, the autonomy of religious organizations. In deciding how to interpret the leeway in hiring and firing that present civil rights law affords religious organizations, the courts have been faced with a tension between religious liberty interests that call for broadly defining the existing exemptions and anti-discrimination concerns that incline toward interpreting that exemption narrowly. The latter interest has palpably greater weight in the context of programs that are publicly funded, lest the government appear to be subsiding discrimination. In dealing with that tension, the courts may be inclined to define narrowly the types of organizations that qualify as "religious," and therefore eligible for the Title VII exemption, and read narrowly, as well, the extent to which religious organizations may require that an employee adhere to the tenets and teachings of the faith. Thus, implementation of "charitable choice" (assuming that it is upheld as constitutional) could well lead the courts to interpret the exemption the law currently - and appropriately - grants to religious organizations more narrowly than is currently the case, with impact not only on programs for which government funding is received, but for religious organizations generally.
[The attachments are being retained in Committee files.]