[House Report 107-138]
[From the U.S. Government Publishing Office]
107th Congress Rept. 107-138
HOUSE OF REPRESENTATIVES
1st Session Part 1
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COMMUNITY SOLUTIONS ACT OF 2001
_______
July 12, 2001.--Ordered to be printed
_______
Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 7]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 7) to provide incentives for charitable
contributions by individuals and businesses, to improve the
effectiveness and efficiency of government program delivery to
individuals and families in need, and to enhance the ability of
low-income Americans to gain financial security by building
assets, having considered the same, report favorably thereon
with amendments and recommend that the bill as amended do pass.
CONTENTS
Page
The Amendments................................................... 2
Purpose and Summary.............................................. 11
Background and Need for the Legislation.......................... 16
Hearings......................................................... 40
Committee Consideration.......................................... 41
Vote of the Committee............................................ 41
Committee Oversight Findings..................................... 50
Performance Goals and Objectives................................. 50
New Budget Authority and Tax Expenditures........................ 50
Congressional Budget Office Cost Estimate........................ 50
Constitutional Authority Statement............................... 55
Section-by-Section Analysis and Discussion....................... 55
Changes in Existing Law Made by the Bill, as Reported............ 60
Committee Jurisdiction Letters................................... 67
Markup Transcript................................................ 72
Dissenting Views................................................. 289
The amendments are as follows:
Strike section 104 and insert the following:
SEC. 104. CHARITABLE DONATIONS LIABILITY REFORM FOR IN-KIND CORPORATE
CONTRIBUTIONS.
(a) Definitions.--For purposes of this section:
(1) Aircraft.--The term ``aircraft'' has the
meaning provided that term in section 40102(6) of title
49, United States Code.
(2) Business entity.--The term ``business entity''
means a firm, corporation, association, partnership,
consortium, joint venture, or other form of enterprise.
(3) Equipment.--The term ``equipment'' includes
mechanical equipment, electronic equipment, and office
equipment.
(4) Facility.--The term ``facility'' means any real
property, including any building, improvement, or
appurtenance.
(5) Gross negligence.--The term ``gross
negligence'' means voluntary and conscious conduct by a
person with knowledge (at the time of the conduct) that
the conduct is likely to be harmful to the health or
well-being of another person.
(6) Intentional misconduct.--The term ``intentional
misconduct'' means conduct by a person with knowledge
(at the time of the conduct) that the conduct is
harmful to the health or well-being of another person.
(7) Motor vehicle.--The term ``motor vehicle'' has
the meaning provided that term in section 30102(6) of
title 49, United States Code.
(8) Nonprofit organization.--The term ``nonprofit
organization'' means--
(A) any organization described in section
501(c)(3) of the Internal Revenue Code of 1986
and exempt from tax under section 501(a) of
such Code; or
(B) any not-for-profit organization
organized and conducted for public benefit and
operated primarily for charitable, civic,
educational, religious, welfare, or health
purposes.
(9) State.--The term ``State'' means each of the
several States, the District of Columbia, the
Commonwealth of Puerto Rico, the Virgin Islands, Guam,
American Samoa, the Northern Mariana Islands, any other
territory or possession of the United States, or any
political subdivision of any such State, territory, or
possession.
(b) Liability.--
(1) Liability of business entities that donate
equipment to nonprofit organizations.--
(A) In general.--Subject to subsection (c),
a business entity shall not be subject to civil
liability relating to any injury or death that
results from the use of equipment donated by a
business entity to a nonprofit organization.
(B) Application.--This paragraph shall
apply with respect to civil liability under
Federal and State law.
(2) Liability of business entities providing use of
facilities to nonprofit organizations.--
(A) In general.--Subject to subsection (c),
a business entity shall not be subject to civil
liability relating to any injury or death
occurring at a facility of the business entity
in connection with a use of such facility by a
nonprofit organization, if--
(i) the use occurs outside of the
scope of business of the business
entity;
(ii) such injury or death occurs
during a period that such facility is
used by the nonprofit organization; and
(iii) the business entity
authorized the use of such facility by
the nonprofit organization.
(B) Application.--This paragraph shall
apply--
(i) with respect to civil liability
under Federal and State law; and
(ii) regardless of whether a
nonprofit organization pays for the use
of a facility.
(3) Liability of business entities providing use of
a motor vehicle or aircraft.--
(A) In general.--Subject to subsection (c),
a business entity shall not be subject to civil
liability relating to any injury or death
occurring as a result of the operation of
aircraft or a motor vehicle of a business
entity loaned to a nonprofit organization for
use outside of the scope of business of the
business entity, if--
(i) such injury or death occurs
during a period that such motor vehicle
or aircraft is used by a nonprofit
organization; and
(ii) the business entity authorized
the use by the nonprofit organization
of motor vehicle or aircraft that
resulted in the injury or death.
(B) Application.--This paragraph shall
apply--
(i) with respect to civil liability
under Federal and State law; and
(ii) regardless of whether a
nonprofit organization pays for the use
of the aircraft or motor vehicle.
(c) Exceptions.--Subsection (b) shall not apply to an
injury or death that results from an act or omission of a
business entity that constitutes gross negligence or
intentional misconduct.
(d) Superseding Provision.--
(1) In general.--Subject to paragraph (2) and
subsection (e), this title preempts the laws of any
State to the extent that such laws are inconsistent
with this title, except that this title shall not
preempt any State law that provides additional
protection for a business entity for an injury or death
described in a paragraph of subsection (b) with respect
to which the conditions specified in such paragraph
apply.
(2) Limitation.--Nothing in this title shall be
construed to supersede any Federal or State health or
safety law.
(e) Election of State Regarding Nonapplicability.--A
provision of this title shall not apply to any civil action in
a State court against a business entity in which all parties
are citizens of the State if such State enacts a statute--
(1) citing the authority of this section;
(2) declaring the election of such State that such
provision shall not apply to such civil action in the
State; and
(3) containing no other provisions.
(f) Effective Date.--This section shall apply to injuries
(and deaths resulting therefrom) occurring on or after the date
of the enactment of this Act.
Strike title II and insert the following:
TITLE II--EXPANSION OF CHARITABLE CHOICE
SEC. 201. PROVISION OF ASSISTANCE UNDER GOVERNMENT PROGRAMS BY
RELIGIOUS AND COMMUNITY ORGANIZATIONS.
Title XXIV of the Revised Statutes of the United States is
amended by inserting after section 1990 (42 U.S.C. 1994) the
following:
``SEC. 1991. CHARITABLE CHOICE.
``(a) Short Title.--This section may be cited as the
`Charitable Choice Act of 2001'.
``(b) Purposes.--The purposes of this section are--
``(1) to enable assistance to be provided to
individuals and families in need in the most effective
and efficient manner;
``(2) to supplement the Nation's social service
capacity by facilitating the entry of new, and the
expansion of existing, efforts by religious and other
community organizations in the administration and
distribution of government assistance under the
government programs described in subsection (c)(4);
``(3) to prohibit discrimination against religious
organizations on the basis of religion in the
administration and distribution of government
assistance under such programs;
``(4) to allow religious organizations to
participate in the administration and distribution of
such assistance without impairing the religious
character and autonomy of such organizations; and
``(5) to protect the religious freedom of
individuals and families in need who are eligible for
government assistance, including expanding the
possibility of their being able to choose to receive
services from a religious organization providing such
assistance.
``(c) Religious Organizations Included as Providers;
Disclaimers.--
``(1) In general.--
``(A) Inclusion.--For any program described
in paragraph (4) that is carried out by the
Federal Government, or by a State or local
government with Federal funds, the government
shall consider, on the same basis as other
nongovernmental organizations, religious
organizations to provide the assistance under
the program, and the program shall be
implemented in a manner that is consistent with
the establishment clause and the free exercise
clause of the first amendment to the
Constitution.
``(B) Discrimination prohibited.--Neither
the Federal Government, nor a State or local
government receiving funds under a program
described in paragraph (4), shall discriminate
against an organization that provides
assistance under, or applies to provide
assistance under, such program on the basis
that the organization is religious or has a
religious character.
``(2) Funds not aid to religion.--Federal, State,
or local government funds or other assistance that is
received by a religious organization for the provision
of services under this section constitutes aid to
individuals and families in need, the ultimate
beneficiaries of such services, and not support for
religion or the organization's religious beliefs or
practices. Notwithstanding the provisions in this
paragraph, title VI of the Civil Rights Act of 1964 (42
USC 2000d et seq.) shall apply to organizations
receiving assistance funded under any program described
in subsection (c)(4).
``(3) Funds not endorsement of religion.--The
receipt by a religious organization of Federal, State,
or local government funds or other assistance under
this section is not an endorsement by the government of
religion or of the organization's religious beliefs or
practices.
``(4) Programs.--For purposes of this section, a
program is described in this paragraph--
``(A) if it involves activities carried out
using Federal funds--
``(i) related to the prevention and
treatment of juvenile delinquency and
the improvement of the juvenile justice
system, including programs funded under
the Juvenile Justice and Delinquency
Prevention Act of 1974 (42 U.S.C. 5601
et seq.);
``(ii) related to the prevention of
crime and assistance to crime victims
and offenders' families, including
programs funded under title I of the
Omnibus Crime Control and Safe Streets
Act of 1968 (42 U.S.C. 3701 et seq.);
``(iii) related to the provision of
assistance under Federal housing
statutes, including the Community
Development Block Grant Program
established under title I of the
Housing and Community Development Act
of 1974 (42 U.S.C. 5301 et seq.);
``(iv) under subtitle B or D of
title I of the Workforce Investment Act
of 1998 (29 U.S.C. 2801 et seq.);
``(v) under the Older Americans Act
of 1965 (42 U.S.C. 3001 et seq.);
``(vi) related to the intervention
in and prevention of domestic violence,
including programs under the Child
Abuse Prevention and Treatment Act (42
U.S.C. 5101 et seq.) or the Family
Violence Prevention and Services Act
(42 U.S.C. 10401 et seq.);
``(vii) related to hunger relief
activities; or
``(viii) under the Job Access and
Reverse Commute grant program
established under section 3037 of the
Federal Transit Act of 1998 (49 U.S.C.
5309 note); or
``(B)(i) if it involves activities to
assist students in obtaining the recognized
equivalents of secondary school diplomas and
activities relating to nonschool hours
programs, including programs under--
``(I) chapter 3 of subtitle A of
title II of the Workforce Investment
Act of 1998 (Public Law 105-220); or
``(II) part I of title X of the
Elementary and Secondary Education Act
(20 U.S.C. 6301 et seq.); and
``(ii) except as provided in subparagraph
(A) and clause (i), does not include activities
carried out under Federal programs providing
education to children eligible to attend
elementary schools or secondary schools, as
defined in section 14101 of the Elementary and
Secondary Education Act of 1965 (20 U.S.C.
8801).
``(d) Organizational Character and Autonomy.--
``(1) In general.--A religious organization that
provides assistance under a program described in
subsection (c)(4) shall have the right to retain its
autonomy from Federal, State, and local governments,
including such organization's control over the
definition, development, practice, and expression of
its religious beliefs.
``(2) Additional safeguards.--Neither the Federal
Government, nor a State or local government with
Federal funds, shall require a religious organization,
in order to be eligible to provide assistance under a
program described in subsection (c)(4), to--
``(A) alter its form of internal governance
or provisions in its charter documents; or
``(B) remove religious art, icons,
scripture, or other symbols, or to change its
name, because such symbols or names are of a
religious character.
``(e) Employment Practices.--A religious organization's
exemption provided under section 702 of the Civil Rights Act of
1964 (42 U.S.C. 2000e-1) regarding employment practices shall
not be affected by its participation in, or receipt of funds
from, programs described in subsection (c)(4), and any
provision in such programs that is inconsistent with or would
diminish the exercise of an organization's autonomy recognized
in section 702 or in this section shall have no effect. Nothing
in this section alters the duty of a religious organization to
comply with the nondiscrimination provisions of title VII of
the Civil Rights Act of 1964 in the use of funds from programs
described in subsection (c)(4).
``(f) Effect on Other Laws.--Nothing in this section shall
alter the duty of a religious organization receiving assistance
or providing services under any program described in subsection
(c)(4) to comply with the nondiscrimination provisions in title
VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.)
(prohibiting discrimination on the basis of race, color, and
national origin), title IX of the Education Amendments of 1972
(20 U.S.C. 1681-1688) (prohibiting discrimination in education
programs or activities on the basis of sex and visual
impairment), section 504 of the Rehabilitation Act of 1973 (29
U.S.C. 794) (prohibiting discrimination against otherwise
qualified disabled individuals), and the Age Discrimination Act
of 1975 (42 U.S.C. 6101-6107) (prohibiting discrimination on
the basis of age).
``(g) Rights of Beneficiaries of Assistance.--
``(1) In general.--If an individual described in
paragraph (3) has an objection to the religious
character of the organization from which the individual
receives, or would receive, assistance funded under any
program described in subsection (c)(4), the appropriate
Federal, State, or local governmental entity shall
provide to such individual (if otherwise eligible for
such assistance) within a reasonable period of time
after the date of such objection, assistance that--
``(A) is an alternative that is accessible
to the individual and unobjectionable to the
individual on religious grounds; and
``(B) has a value that is not less than the
value of the assistance that the individual
would have received from such organization.
``(2) Notice.--The appropriate Federal, State, or
local governmental entity shall guarantee that notice
is provided to the individuals described in paragraph
(3) of the rights of such individuals under this
section.
``(3) Individual described.--An individual
described in this paragraph is an individual who
receives or applies for assistance under a program
described in subsection (c)(4).
``(h) Nondiscrimination Against Beneficiaries.--
``(1) Grants and cooperative agreements.--A
religious organization providing assistance through a
grant or cooperative agreement under a program
described in subsection (c)(4) shall not discriminate
in carrying out the program against an individual
described in subsection (g)(3) on the basis of
religion, a religious belief, or a refusal to hold a
religious belief.
``(2) Indirect forms of assistance.--A religious
organization providing assistance through a voucher,
certificate, or other form of indirect assistance under
a program described in subsection (c)(4) shall not deny
an individual described in subsection (g)(3) admission
into such program on the basis of religion, a religious
belief, or a refusal to hold a religious belief.
``(i) Accountability.--
``(1) In general.--Except as provided in paragraphs
(2) and (3), a religious organization providing
assistance under any program described in subsection
(c)(4) shall be subject to the same regulations as
other nongovernmental organizations to account in
accord with generally accepted accounting principles
for the use of such funds and its performance of such
programs.
``(2) Limited audit.--
``(A) Grants and cooperative agreements.--A
religious organization providing assistance
through a grant or cooperative agreement under
a program described in subsection (c)(4) shall
segregate government funds provided under such
program into a separate account or accounts.
Only the separate accounts consisting of funds
from the government shall be subject to audit
by the government.
``(B) Indirect forms of assistance.--A
religious organization providing assistance
through a voucher, certificate, or other form
of indirect assistance under a program
described in subsection (c)(4) may segregate
government funds provided under such program
into a separate account or accounts. If such
funds are so segregated, then only the separate
accounts consisting of funds from the
government shall be subject to audit by the
government.
``(3) Self audit.--A religious organization
providing services under any program described in
subsection (c)(4) shall conduct annually a self audit
for compliance with its duties under this section and
submit a copy of the self audit to the appropriate
Federal, State, or local government agency, along with
a plan to timely correct variances, if any, identified
in the self audit.
``(j) Limitations on Use of Funds; Voluntariness.--No funds
provided through a grant or cooperative agreement to a
religious organization to provide assistance under any program
described in subsection (c)(4) shall be expended for sectarian
instruction, worship, or proselytization. If the religious
organization offers such an activity, it shall be voluntary for
the individuals receiving services and offered separate from
the program funded under subsection (c)(4). A certificate shall
be separately signed by religious organizations, and filed with
the government agency that disburses the funds, certifying that
the organization is aware of and will comply with this
subsection.
``(k) Effect on State and Local Funds.--If a State or local
government contributes State or local funds to carry out a
program described in subsection (c)(4), the State or local
government may segregate the State or local funds from the
Federal funds provided to carry out the program or may
commingle the State or local funds with the Federal funds. If
the State or local government commingles the State or local
funds, the provisions of this section shall apply to the
commingled funds in the same manner, and to the same extent, as
the provisions apply to the Federal funds.
``(l) Indirect Assistance.--When consistent with the
purpose of a program described in subsection (c)(4), the
Secretary of the department administering the program may
direct the disbursement of some or all of the funds, if
determined by the Secretary to be feasible and efficient, in
the form of indirect assistance. For purposes of this section,
`indirect assistance' constitutes assistance in which an
organization receiving funds through a voucher, certificate, or
other form of disbursement under this section receives such
funding only as a result of the private choices of individual
beneficiaries and no government endorsement of any particular
religion, or of religion generally, occurs.
``(m) Treatment of Intermediate Grantors.--If a
nongovernmental organization (referred to in this subsection as
an `intermediate grantor'), acting under a grant or other
agreement with the Federal Government, or a State or local
government with Federal funds, is given the authority under the
agreement to select nongovernmental organizations to provide
assistance under the programs described in subsection (c)(4),
the intermediate grantor shall have the same duties under this
section as the government when selecting or otherwise dealing
with subgrantors, but the intermediate grantor, if it is a
religious organization, shall retain all other rights of a
religious organization under this section.
``(n) Compliance.--A party alleging that the rights of the
party under this section have been violated by a State or local
government may bring a civil action for injunctive relief
pursuant to section 1979 against the State official or local
government agency that has allegedly committed such violation.
A party alleging that the rights of the party under this
section have been violated by the Federal Government may bring
a civil action for injunctive relief in Federal district court
against the official or government agency that has allegedly
committed such violation.
``(o) Training and Technical Assistance for Small
Nongovernmental Organizations.--
``(1) In general.--From amounts made available to
carry out the purposes of the Office of Justice
Programs (including any component or unit thereof,
including the Office of Community Oriented Policing
Services), funds are authorized to provide training and
technical assistance, directly or through grants or
other arrangements, in procedures relating to potential
application and participation in programs identified in
subsection (c)(4) to small nongovernmental
organizations, as determined by the Attorney General,
including religious organizations, in an amount not to
exceed $50 million annually.
``(2) Types of assistance.--Such assistance may
include--
``(A) assistance and information relative
to creating an organization described in
section 501(c)(3) of the Internal Revenue Code
of 1986 to operate identified programs;
``(B) granting writing assistance which may
include workshops and reasonable guidance;
``(C) information and referrals to other
nongovernmental organizations that provide
expertise in accounting, legal issues, tax
issues, program development, and a variety of
other organizational areas; and
``(D) information and guidance on how to
comply with Federal nondiscrimination
provisions including, but not limited to, title
VI of the Civil Rights Act of 1964 (42 U.S.C.
2000d et seq.), title VII of the Civil Rights
Act of 1964 (42 U.S.C. 2000e et seq.), the Fair
Housing Act, as amended (42 U.S.C. 3601 et
seq.), title IX of the Education Amendments of
1972 (20 U.S.C. 1681-1688), section 504 of the
Rehabilitation Act of 1973 (29 U.S.C. 694), and
the Age Discrimination Act of 1975 (42 U.S.C.
6101-6107).
``(3) Reservation of funds.--An amount of no less
than $5,000,000 shall be reserved under this section.
Small nongovernmental organizations may apply for these
funds to be used for assistance in providing full and
equal integrated access to individuals with
disabilities in programs under this title.
``(4) Priority.--In giving out the assistance
described in this subsection, priority shall be given
to small nongovernmental organizations serving urban
and rural communities.''.
Purpose and Summary
While the First Amendment to the Constitution provides that
the Government shall not ``establish'' religion, or any
particular religion, by directing governmental support to a
particular religion, or to adherents of religion to the
exclusion of adherents to no religion, the First Amendment also
provides that the Government shall not prohibit the ``free
exercise'' of religion.\1\ 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.
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\1\ The First Amendment to the Constitution provides that
``Congress shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof. . . .''
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With such constitutional concerns in mind, the rules for
participation in programs of Government funding through grants
and cooperative agreements,\2\ and through indirect forms of
assistance, for the provision of social services must assess
eligibility to participate without regard to the religious
character of an organization, and any religious beliefs that
organization might hold, or the intensity of those beliefs,
should not be a basis for rejecting their participation out-of-
hand. Indeed, faith-based organizations often allow their
beneficiaries greater and more flexible access to the social
services they offer.\3\
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\2\ H.R. 7 refers to ``grants and cooperative agreements'' to avoid
confusion with ``Government contracts.'' See 31 U.S.C. Sec. Sec. 6304;
6305. Title 31 U.S.C. Sec. 6305 states ``Using cooperative agreements.
An executive agency shall use a cooperative agreement as the legal
instrument reflecting a relationship between the United States
Government and a State, a local government, or other recipient when--
(1) the principal purpose of the relationship is to transfer a thing of
value to the State, local government, or other recipient to carry out a
public purpose of support or stimulation authorized by a law of the
United States instead of acquiring (by purchase, lease, or barter)
property or services for the direct benefit or use of the United States
Government; and (2) substantial involvement is expected between the
executive agency and the State, local government, or other recipient
when carrying out the activity contemplated in the agreement.'' Title
31 U.S.C. Sec. 6304 states: ``Using grant agreements. An executive
agency shall use a grant agreement as the legal instrument reflecting a
relationship between the United States Government and a State, a local
government, or other recipient when--(1) the principal purpose of the
relationship is to transfer a thing of value to the State or local
government or other recipient to carry out a public purpose of support
or stimulation authorized by a law of the United States instead of
acquiring (by purchase, lease, or barter) property or services for the
direct benefit or use of the United States Government; and (2)
substantial involvement is not expected between the executive agency
and the State, local government, or other recipient when carrying out
the activity contemplated in the agreement.'' Insofar as documents
governing the provision of social services by religious organizations
under the programs covered by title II of H.R. 7 are labeled contracts,
when in fact they more closely resemble grants rather than procurement
contracts, such documents should be considered grants under H.R. 7 and
they should be subject to its provisions.
\3\ For example, Charles Clingman, executive director of the Jireh
Development Corporation in Cincinnati, Ohio, testifying before the
House Subcommittee on the Constitution, stated that, ``Unlike secular
organizations, faith-based organizations develop immediate
relationships with the clients and the people that they serve . . .
They are neighborhood residents who we see on a daily basis at the
grocery store, at the market and the bank, whatever . . . One thing we
bring to the table is, at the grass roots level, we really do not
close. If someone gets in trouble at midnight we allow them to call,
based on the crisis they have. Other programs close at 5 o'clock. The
Government closes at 5 o'clock. Faith-based organizations, i.e.,
churches, synagogues, mosques, they don't close. They are available to
serve clients 24/7.'' Transcript of Hearings on ``State and Local
Implementation of Existing Charitable Choice Programs'' before the
House Subcommittee on the Constitution (107th Cong. 1st Sess.) (April
24, 2001) at 38, 60. The Reverend Donna Jones of the Cookman United
Methodist Church in north Philadelphia, who runs a charitable choice
welfare-to-work program also testified that, ``We also found that we
were offering something that was unique to our community . . . We also
found that we got greater information about family situations, about
domestic violence, about other barriers to employment that were
happening in the house than other agencies were receiving. We also
were--because we were a church, there was an expectation that was
different than what they would have expected to have seen in a local
agency . . . People expected us to go the extra mile. Also, because we
were a church, we were more flexible in our ability to deliver
services.'' Id. at 22-23.
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The so-called ``charitable choice'' principles, embodied in
H.R. 7, allow for the public funding of faith-based
organizations on the same basis as other nongovernmental
organizations \4\ and permit them to maintain their religious
character by choosing their staff, board members, and methods.
The principles also protect the rights of conscience of their
clients and ensure that alternative providers that are
unobjectionable to them on religious grounds are available.\5\
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\4\ Subsection (c)(1) of the Charitable Choice Act of 2001 provides
that ``for any program described in paragraph (4) that is carried out
by the Federal Government, or by a State or local government with
Federal funds, the government shall consider, on the same basis as
other nongovernmental organizations, religious organizations to provide
the assistance under the program, and the program shall be implemented
in a manner that is consistent with the establishment clause and the
free exercise clause of the first amendment to the Constitution.'' The
requirement that religious organizations shall be considered ``on the
same basis as other nongovernmental organizations'' does not impart to
religious organizations any preferential treatment in the program
application and administration process. Subsection (c)(1) further
provides that, ``Neither the Federal Government, nor a State or local
government receiving funds under a program described in paragraph (4),
shall discriminate against an organization that provides assistance
under, or applies to provide assistance under, such program on the
basis that the organization is religious or has a religious
character.''
\5\ See subsection (g) of the Charitable Choice Act of 2001.
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``Charitable choice'' is not new. Examples of existing laws
that include ``charitable choice'' provisions are the Substance
Abuse and Mental Health Services Administration, Pub. L. No.
106-310, 42 U.S.C. Sec. 300x-65; the Community Services Block
Grant Act of 1998, Pub. L. No. 105-285, 42 U.S.C. Sec. 9920;
the Welfare Reform Act of 1996, Pub. L. No. 104-193, 42 U.S.C.
Sec. 604a; and the Community Renewal Tax Relief Act of 2000,
Pub. L. No. 106-554, 42 U.S.C. Sec. 290kk-1. Each was signed
into law by President Clinton.
H.R. 7 simply seeks to apply the tested principles of
charitable choice, which in the case of welfare services have
been Federal law for 5 years, to cover additional Federal
programs, bringing greater clarity and constitutional adherence
to a wider scope of Federal funding programs. The charitable
choice language in H.R. 7 has been carefully tailored to
respond to discussions of earlier versions of the provision.
New language emphasizes that Government funding of a religious
service provider is not intended to endorse religion but rather
to purchase effective assistance; makes it clearer that
beneficiaries may not be coerced into religious observance, but
instead inherently religious activities such as worship and
proselytization must be privately funded, voluntary, and
offered separately from the Government-funded services;
requires religious organizations to sign a certificate
acknowledging this duty of non-coercion and seperation; clearly
obligates Government to inform clients of their religious
liberty rights; emphasizes that the civil rights exemption that
allows religious organizations to take religion into account in
hiring decisions does not remove their obligation to respect
the other non-discrimination requirements in Federal law from
which they are not already exempt; requires religious
organizations to keep direct Government funds separate from
other funds to enable Government to audit the books of a
religious organization without entangling itself in strictly
religious matters; emphasizes that religious organizations that
receive Federal funds are held to the same performance
standards as well as the same accounting standards as other
grantees; requires religious organizations to conduct an annual
self audit to ensure compliance and corrective action; provides
for $50 million in new Federal funding for technical assistance
to novice and small nongovernmental organizations to help
ensure that they have the knowledge and administrative capacity
to comply with these and other Federal requirements; and
clarifies how charitable choice principles apply when an
organization that receives Federal funds in turn subgrants
funds to other organizations.
Title II of H.R. 7, the ``Charitable Choice Act of 2001,''
provides that its purposes are ``(1) to enable assistance to be
provided to individuals and families in need in the most
effective and efficient manner; (2) to supplement the nation's
social service capacity by facilitating the entry of new, and
the expansion of existing, efforts by religious and other
community organizations in the administration and distribution
of Government assistance under the Government programs
described in subsection (c)(4); (3) to prohibit discrimination
against religious organizations on the basis of religion in the
administration and distribution of Government assistance under
such programs; (4) to allow religious organizations to
participate in the administration and distribution of such
assistance without impairing the religious character and
autonomy of such organizations; and (5) to protect the
religious freedom of individuals and families in need who are
eligible for Government assistance, including expanding the
possibility of their being able to choose to receive services
from a religious organization providing such assistance.'' \6\
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\6\ H.R. 7 would expand Federal programs governed by charitable
choice to include programs related to the prevention and treatment of
juvenile delinquency and the improvement of the juvenile justice
system, including programs funded under the Juvenile Justice and
Delinquency Prevention Act of 1974; related to the prevention of crime
and assistance to crime victims and offenders' families, including
programs funded under title I of the Omnibus Crime Control and Safe
Streets Act of 1968; related to the provision of assistance under
Federal housing statutes, including the Community Development Block
Grant Program established under title I of the Housing and Community
Development Act of 1974; under subtitle B or D of title I of the
Workforce Investment Act of 1998; under the Older Americans Act of
1965; related to the intervention in and prevention of domestic
violence, including programs under the Child Abuse and Prevention and
Treatment Act or the Family Violence Prevention and Services Act;
related to hunger relief activities; under the Job Access and Reverse
Commute grant program established under section 3037 of the Federal
Transit Act of 1998; or involving activities to assist students in
obtaining the recognized equivalents of secondary school diplomas and
activities relating to non-school hours programs, including programs
under chapter 3 of subtitle A of title II of the Workforce Investment
Act of 1998 or part I of title X of the Elementary and Secondary
Education Act but not including activities carried out under Federal
programs providing education to children eligible to attend elementary
schools or secondary schools, as defined in section 14101 of the
Elementary and Secondary Education Act of 1965. The intent of H.R. 7 is
to apply charitable choice principles to all Federal social service
programs that further Federal goals in the listed subject areas,
including, for example, programs to strengthen responsible fatherhood
and to reduce youth risk behaviors.
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Under H.R. 7, religious organizations receiving grants
under covered programs may not use the provided funds for
``sectarian instruction, worship, or proselytization,'' \7\ and
a beneficiary's taking advantage of a social service program
cannot be conditioned on taking part in such activities.\8\
Existing charitable choice law, part of the Welfare Reform Act
of 1996, contains an explicit protection of a beneficiary's
right to ``refus[e] to actively participate in a religious
practice,'' thereby insuring a beneficiary's right to avoid any
unwanted religious practices,\9\ and a similar provision in
H.R. 7 makes clear that participation, if any, in sectarian
instruction, worship, or proselytization must be voluntary and
noncompulsory.
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\7\ In addition to the sectarian practices listed in subsection
(j), the Supreme Court has found the following practices to be
inherently religious. The Supreme Court has found that prayer; see
Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000); Lee
v. Weisman, 505 U.S. 577 (1992); Wallace v. Jaffree, 472 U.S. 38
(1985); School District of Abington Township v. Schempp, 374 U.S. 203
(1963); Engel v. Vitale, 370 U.S. 421 (1962); devotional Bible reading;
see School District of Abington Township, 374 U.S. at 203; veneration
of the Ten Commandments, see Stone v. Graham, 449 U.S. 39 (1980) (per
curiam); classes in confessional religion; see McCollum v. Board of
Education of School District No. 71, 333 U.S. 203 (1948); and teaching
the biblical creation story as science; see Edwards v. Aguillard, 482
U.S. 578 (1987); Epperson v. Arkansas, 393 U.S. 97 (1968); are all
forms of inherently religious speech by the Government. These practices
should not be part of a Government-funded program.
\8\ Subsection (j) of the Charitable Choice Act of 2001 also
provides that, ``No funds provided through a grant or cooperative
agreement to a religious organization to provide assistance under any
[covered] program . . . shall be expended for sectarian instruction,
worship, or proselytization. If the religious organization offers such
an activity, it shall be voluntary for the individuals receiving
services and offered separate from the program funded under subsection
(c)(4). A certificate shall be separately signed by religious
organizations and filed with the Government agency that disburses the
funds, certifying that the organization is aware of and will comply
with this subsection.''
\9\ 42 U.S.C. Sec. 604a(g) (faith-based organizations may not
discriminate or otherwise turn away a beneficiary from the
organization's program because the beneficiary ``refus[es] to actively
participate in a religious practice'').
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Such a provision is consistent with Supreme Court
precedent. Supreme Court Justices O'Connor and Breyer require
that no Government funds be diverted to ``religious
indoctrination.'' Therefore, under H.R. 7, religious
organizations receiving direct funding will have to separate
their social service program from any sectarian instruction,
worship, or indoctrination.\10\ If the Federal assistance is
utilized for social service functions without attendant
sectarian instruction, worship, or proselytization, then no
constitutional problems are raised. If the aid flows into the
entirety of a social service program and some ``religious
indoctrination [is] taking place therein,'' then the
indoctrination ``would be directly attributable to the
Government.'' \11\ The Supreme Court in Bowen v. Kendrick,\12\
in upholding a Federal program allowing funds to be distributed
to faith-based organizations for teen family counseling
programs, also made clear when remanding the case to the
District Court, that ``[t]he District Court should . . .
consider on remand whether in particular cases [the federal]
aid has been used to fund specifically religious activities in
an otherwise substantially secular setting . . . Here it would
be relevant to determine, for example, whether the Secretary
[of Health and Human Services] has permitted [federal] grantees
to use materials that have an explicitly religious content or
are designed to inculcate the views of a particular religious
faith.'' Therefore, if any part of a faith-based organization's
activities involve ``religious indoctrination,'' such
activities must be set apart from the Government-funded program
and, hence, privately funded.\13\
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\10\ Mitchell v. Helms, 120 S.Ct. 2530, 2568 (2000) (O'Connor, J.,
concurring in the judgment).
\11\ Id.
\12\ 487 U.S. 589, 621 (1988).
\13\ For example, a welfare-to-work program operated by a church in
Philadelphia illustrates how this can be done. Teachers in the program
conduct readiness-to-work classes in the church basement weekdays
pursuant to a Government grant. During a free-time period the pastor of
the church holds a voluntary Bible study in her office up on the ground
floor. The sectarian instruction is privately funded and separated in
both time and location from the welfare-to-work classes.
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On October 17, 2000, President Clinton stated his constitutional
concerns regarding the implementation of the charitable choice
provisions in Substance Abuse and Mental Health Services Administration
(``SAMHSA'') programs as follows: ``This bill includes a provision
making clear that religious organizations may qualify for SAMHSA's
substance abuse prevention and treatment grants on the same basis as
other nonprofit organizations. The Department of Justice advises,
however, that this provision would be unconstitutional to the extent
that it were construed to permit governmental funding of organizations
that do not or cannot separate their religious activities from their
substance abuse treatment and prevention activities that are supported
by SAMHSA aid. Accordingly, I construe the act as forbidding the
funding of such organizations and as permitting Federal, State, and
local governments involved in disbursing SAMHSA funds to take into
account the structure and operations of a religious organization in
determining whether such an organization is constitutionally and
statutorily eligible to receive funding.'' Weekly Compilation of
Presidential Documents (Oct. 23, 2000) (Statement on Signing the
Children's Health Act of 2000), p. 2504. He made an identical statement
regarding the charitable choice provisions in the Community Renewal Tax
Relief Act when he signed that measure into law on December 15, 2000.
See White House Office of the Press Secretary, ``Statement of the
President Upon Signing H.R. 4577, the Consolidated Appropriations Act,
FY 2001'' (December 22, 2000), at 8. These concerns are the same as
those addressed by the provision in subsection (j) of the Charitable
Choice Act of 2001, which provides that, ``No funds provided through a
grant or cooperative agreement to a religious organization to provide
assistance under any [covered] program . . . shall be expended for
sectarian instruction, worship, or proselytization. If the religious
organization offers such an activity, it shall be voluntary for the
individuals receiving services and offered separate from the program
funded under subsection (c)(4).'' The required separation would not be
met where the Government-funded program entails worship, sectarian
instruction, or proselytizing. Under subsection (j), there are to be no
practices constituting ``religious indoctrination'' performed by an
employee while working in a Government-funded program. The same is true
for volunteers. However, to say that the Government-funded program is
to be devoid of sectarian practices is different from saying that the
program must be entirely secular. Indeed, subsection (d) specifically
guarantees that faith-based organizations may retain religious symbols,
a religious name, specifically religious language in its chartering
documents, and the selection of its governing board along religious
lines. And, under subsection (e), the faith-based organization may
staff on a religious basis and thereby retain is religious character.
Most importantly, faith-based organization employees and volunteers can
do their good works out of religious motive. While the task of helping
the poor and needy is ``secular'' from the perspective of the
Government, from the viewpoint of the faith-based organization and its
workers it is a ministry of mercy driven by faith and guided by faith
regarding how best to meet basic human needs.
H.R. 7 also requires a religious organization receiving
funds under a covered program to sign a certificate of
compliance that certifies that the organization is aware of and
will comply with the provisions against the use of Government
funds for inherently religious activities. This certificate,
which has the purpose of impressing upon both the Government
grantor and the faith-based organization the importance of both
voluntariness and the need to separate sectarian instruction,
worship, and proselytization, must be filed with the Government
agency disbursing the funds.
Subsection (g) of the Charitable Choice Act of 2001 also
protects beneficiaries of charitable choice programs by
requiring the presence of an alternative that is
unobjectionable to beneficiaries on religious grounds when a
religious organization is providing social services.\14\ Such
an alternative need not be secular.\15\ If, of course, a
beneficiary objects to being served by any faith-based
organization, such a beneficiary would be guaranteed a secular
alternative. The alternative need not be a completely separate
program. It also may be purchased on the open social services
market. Subsection (g) also requires the appropriate Federal,
State, or local governmental agency to give notice to
beneficiaries receiving services under the covered programs of
their right to an alternative that is unobjectionable to them
on religious grounds.
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\14\ Subsection (g)(1) provides that, ``If an individual . . . has
an objection to the religious character of the organization from which
the individual receives, or would receive, assistance funded under any
program described in subsection (c)(4), the appropriate Federal, State,
or local governmental entity shall provide to such individual (if
otherwise eligible for such assistance) within a reasonable period of
time after the date of such objection, assistance that--(A) is an
alternative that is accessible to the individual and unobjectionable to
the individual on religious grounds; and (B) has a value that is not
less than the value of the assistance that the individual would have
received from such organization.'' Subsection (g)(2) also provides
that, ``The appropriate Federal, State, or local governmental entity
shall guarantee that notice is provided to the individuals [taking part
in charitable choice programs] of the rights of such individuals under
this section.''
\15\ 42 U.S.C. Sec. 604a(e), part of the 1996 Welfare Reform Act,
also does not require a secular alternative unless a secular
alternative is the only alternative acceptable to the beneficiary: ``If
an individual . . . has an objection to the religious character of the
organization or institution from which the individual receives, or
would receive, assistance funded under any program described in
subsection (a)(2) of this section, the State in which the individual
resides shall provide such individual (if otherwise eligible for such
assistance) within a reasonable period of time after the date of such
objection with assistance from an alternative provider that is
accessible to the individual and the value of which is not less than
the value of the assistance which the individual would have received
from such organization.''
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Further, charitable choice principles prohibit faith-based
organizations taking part in programs covered by title II of
H.R. 7 from discriminating on the basis of religion against
those who seek to be beneficiaries of such programs.\16\
Subsection (m) of the Charitable Choice Act of 2001 also
provides that intermediaries authorized to act under a grant or
other agreement to select nongovernmental organizations to
provide assistance under any program covered by title II of
H.R. 7 have the same duties under title II as the Government
when selecting or otherwise dealing with subgrantors, but the
intermediary grantor, if it is a religious organization, shall
retain all other rights of a religious organization under title
II.
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\16\ Subsection (h) of the Charitable Choice Act of 2001, for
example, prohibits discrimination against beneficiaries of charitable
choice programs by providing that a religious organization providing
assistance through a grant or cooperative agreement, ``shall not
discriminate, in carrying out the program, against an individual . . .
on the basis of religion, a religious belief, or a refusal to hold a
religious belief.'' Beneficiaries of charitable choice programs funded
through indirect forms of assistance ``shall not deny an individual . .
. admission into [a covered] program on the basis of religion, a
religious belief, or a refusal to hold a religious belief.'' H.R. 7
does not preempt any Federal, State, or local nondiscrimination laws
pertaining to the serving of beneficiaries.
---------------------------------------------------------------------------
Misguided understandings of the Constitution have for too
long deterred Federal, State, and local governments from even
inviting religious organizations to participate in
informational meetings designed for those willing to compete
for social service funds. H.R. 7 simply makes clear to the
Federal Government, states, and localities, that if they
provide a grant, to or enter into a cooperative agreement with,
religious organizations under charitable choice principles,
they need not fear that their actions are unconstitutional.\17\
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\17\ H.R. 7, by prohibiting discrimination against organizations
based on religion, is Congress' attempt to make clear to grant and
program distributors what the rules are for allowing faith-based
organizations to compete on an equal basis with nonreligious
organizations for Federal social service funds. What a religious
organization believes should have no bearing on its eligibility to
receive a grant. Insofar as there are statutory rights in H.R. 7 that
inure to the benefit of religious social service providers, and also
statutory duties on the part of such religious organizations, in the
rare case a definition of ``religious organization'' may be required.
Such a definition should be articulated by the courts on a case-by-case
basis, just as the courts have done under title VII and the
applicability of its Sec. 702 exempting religious organizations. See
Hall v. Baptist Memorial Health Care Corporation, 215 F.3d 618, 624-25
(6th Cir. 2000) (hospital was religious organization); Killinger v.
Samford University, 113 F.3d 196, 199 (11th Cir. 1997) (university was
religious organization); EEOC v. Presbyterian Ministries, Inc. 788 F.
Supp. 1154, 1156 (W.D. Wash. 1992) (retirement home was religious
organization); Fike v. United Methodist Children's Home, 547 F. Supp.
286, 290 (E.D. Va. 1982) (residential care home for youth was no longer
a religious organization).
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Background and Need for the Legislation
The pervasive role of Government in providing social
services, necessitating higher and higher taxes on its
citizens, requires a fresh evaluation of the ways in which
religious and other community organizations can best be made
part of social welfare programs.
Today, because Government controls most of the resources
available for the provision of social services, private funding
for private sector welfare services is increasingly not a
practical alternative. In 2000, for example, approximately 45
percent of the average American's income will go to pay
federal, state, and local taxes, and the average American will
have worked a full 167 days in order to pay those taxes (until
June 16).\18\ The current situation leaves little left for
citizens to contribute to non-governmental social service
providers, as a family with two earners today pays more to the
Government in taxes than the average family spends on their own
food, clothing, and housing combined.\19\ In contrast, in 1957,
a family with two earners only paid approximately a quarter of
their budget in taxes.\20\
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\18\ See Americans for Tax Reform Foundation, ``Cost of Government
Day Report: 2000'' (8th ed. 2000) at 10.
\19\ See Amity Shlaes, The Greedy Hand: How Taxes Drive Americans
Crazy and What To Do About It (Random House, 1999) at 14.
\20\ Id.
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Despite an increase in the total amount citizens give to
charity, there has been a substantial decline in the percentage
of both the citizenry and the portion of their income devoted
to philanthropy and charity since the rise of dramatically
expanded Government welfare programs in the 1960's and the
Government's taking a greater share of the average American's
income. This phenomenon is startling. As Robert D. Putnam
reveals in his book, Bowling Alone: The Collapse and Revival of
American Community:
Beginning in 1961, however, philanthropy's share of
Americans' income has fallen steadily for nearly four
decades . . . This array of evidence on declining
generosity is reinforced by what Americans from all
walks of life have told Roper and Yankelovich pollsters
in the two longest-running surveys on philanthropy. As
recently as the first half of the 1980's [,] nearly
half of all American adults reported that they had made
a contribution to charity in the previous month, and
more than half said that they contributed to religious
groups at least ``occasionally.'' However, both these
barometers of self-reported generosity fell steadily
over the next two decades. By the prosperous mid-1990's
barely one American in three reported any charitable
contribution in the previous month, and fewer than two
in five claimed even occasional religious giving . . .
If we were giving, at century's end, the same fraction
of our income as our parents gave in 1960 [,] U.S.
religious congregations would have $20 billion more
annually [to invest in good works].\21\
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\21\ Robert D. Putnam, Bowling Alone: The Collapse and Revival of
American Community (Simon & Schuster 2000) at 123, 126 (emphasis
added).
The following chart compares total Federal outlays as a
percentage of national income with total charitable giving by
individuals as a percentage of national income between the
years 1940 and 2000. The chart shows that, since the expansion
of Federal welfare programs in the 1960's, total Federal
outlays have increased approximately 20 percent as a percentage
of national income, while charitable giving by individuals has
decreased approximately 25 percent as a percentage of national
income.
Starting around 1960, an ever-widening ``charity gap'' has
developed as Federal outlays have increased and charitable
giving by individuals has decreased. As reported in a recent
article in the American Sociological Review, ``In a society . .
. in which the median congregation has only 75 regular
participants and an annual budget of only $55,000, the
substantially increased delivery of social services by
congregations can occur only via increases in Government
funding to congregations.'' \22\ While the Federal Government
leaves, after taxes, so little for most average citizens to
contribute to charity, it too often excludes faith-based
organizations from the receipt of Government funds even when
such organizations can meet basic human needs most effectively
and when faith-based organizations can carry on their programs
in accordance with both the free exercise of religion and the
Establishment Clause.
---------------------------------------------------------------------------
\22\ Mark Chaves, ``Religious Congregations and Welfare Reform: Who
Will Take Advantage of `Charitable Choice'?'' 64 American Sociological
Review 836, 844 (1999).
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The lack of neutral Government funding of both nonreligious
and religious social service providers hurts the needy by
denying them the ability to choose the provider that will best
meet their needs.
THE FIRST AMENDMENT'S RELIGION CLAUSES PROTECT INDIVIDUALS FROM AN
ESTABLISHMENT OF RELIGION WHILE ALSO PROTECTING THEIR FREEDOM TO
EXERCISE RELIGION
Commentators have described the First Amendment as erecting
a ``wall of separation between church and state.'' However, the
phrase ``wall of separation'' is taken from a reply Thomas
Jefferson wrote a letter by a committee of the Danbury Baptist
Association dated January 1, 1802, and the Supreme Court has
made clear that the phrase ``wall of separation between church
and state'' is only a metaphor and that ``[t]he metaphor itself
is not a wholly accurate description of the practical aspects
of the relationship that in fact exists between church and
state.'' \23\ It was James Madison, not Thomas Jefferson, who
was the principal drafter of the First Amendment, and in the
debates concerning the wording of the First Amendment, Madison
stated that he ``apprehended the meaning of the words to be,
that Congress should not establish a religion, and enforce the
legal observation of it by law, nor compel men to worship God
in any manner contrary to their conscience.'' \24\ Madison
further stated that he ``believed that the people feared one
sect might obtain a preeminence, or two combine together, and
establish a religion to which they would compel others to
conform.'' \25\ Charitable choice principles are in accordance
with Madison's understanding of the First Amendment: charitable
choice principles do not prefer religion over non-religion, or
any particular religion over any other particular religion,
they protect beneficiaries' rights of conscience by allowing
them non-religious alternatives, and they prevent
discrimination against beneficiaries on the basis of religion.
---------------------------------------------------------------------------
\23\ Lynch v. Donnelly, 465 U.S. 668, 673 (1984).
\24\ 1 Annals of Congress 730 (1984) (August 15, 1789).
\25\ Id. at 731.
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Unfortunately, too often faith-based organizations have
been subject to blanket exclusionary rules applied by
Government grant distributors. As described by the
Congressional Research Service, ``interpretations and
applications of the establishment of religion clause of the
First Amendment as well as of the sometimes more strict
provisions of state constitutions have in the past generally
required programs operated by religious organizations that
receive public funding in the form of grants or contracts to be
essentially secular in nature. Religious symbols and art have
had to be removed from the premises . . . Charitable choice
attempts to move beyond these restrictions and allow faith-
based organizations to participate in publicly funded social
services programs while retaining their religious character.''
CRS Report to Congress, RS20809: Public Aid and Faith-Based
Organizations (Charitable Choice): An Overview (updated April
18, 2001) at 2.\26\ The exclusion of certain faith-based social
service providers from program eligibility simply because of
what they believe, or because of how they practice and express
what they believe, is discriminatory on the bases of religious
speech and religious exercise. The charitable choice principles
embodied in H.R. 7 eliminates restrictions on religious
organizations that the Supreme Court no longer requires or
considers constitutionally legitimate. Dr. Amy Sherman has
written, ``Charitable Choice's most important effect thus far
is that it has made collaboration plausible for those within
Government and the faith community who had previously assumed
such partnering was somehow outside the bounds of
constitutionality under their (misguided) interpretation of the
First Amendment.'' \27\
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\26\ See, e.g., 24 C.F.R. Sec. 570.200 (``Constitutional
prohibition. In accordance with First Amendment Church/State
Principles, as a general rule, CDBG [Community Development Block Grant]
assistance may not be used for religious activities or provided to
primarily religious entities for any activities, including secular
activities.''); 24 C.F.R. Sec. 92.257 (``HOME funds [Home Investment
Partnership Funds] may not be provided to primarily religious
organizations, such as churches, for any activity including secular
activities.''). See also Carl H. Esbeck, The Regulation of Religious
Organizations as Recipients of Governmental Assistance (Center for
Public Justice 1996), at 12-19.
\27\ Dr. Amy S. Sherman, ``The Growing Impact of Charitable Choice:
A Catalogue of New Collaborations Between Government and Faith-Based
Organizations in Nine States'' (``Growing Impact''), The Center for
Public Justice Charitable Choice Tracking Project (March 2000) at 9
(emphasis in original).
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EMPIRICAL AND ATTITUDINAL SURVEYS SHOW THAT EXISTING CHARITABLE CHOICE
PROGRAMS HAVE BEEN SUCCESSFUL AND POPULAR
Support for increased Government aid for faith-based
organizations that can best meet social service needs is
strong, and particularly strong among African-Americans.
Perhaps the most comprehensive survey of public attitudes
toward charitable choice programs was conducted by researcher
Mark Chaves and reported in the American Sociological Review.
The study used a nationally representative sample of 1,456
religious congregations and gathered data via a 60-minute
interview with one key informant--a minister, priest, rabbi, or
other leader--from 1,236 congregations.\28\ According to
Chaves' survey, 30 percent of congregation attendees were aware
of ``charitable choice'' legislation, and 45 percent would
apply for Government funds to support social service
projects.\29\ Chaves concluded that
---------------------------------------------------------------------------
\28\ Mark Chaves, ``Religious Congregations and Welfare Reform: Who
Will Take Advantage of `Charitable Choice'?'' 64 American Sociological
Review 836, 838 (1999).
\29\ Id. at 838.
Apparently there is room for more public education
about charitable-choice opportunities, [and there is
only] a small subset of congregations that will not be
interested in these opportunities . . . 36 percent of
congregations, representing 45 percent of religious-
service attenders, would be interested in applying for
Government money to support human services programs.
Thus, the ``market'' for charitable-choice
implementation in American religion apparently is
fairly sizable.\30\
---------------------------------------------------------------------------
\30\ Id. at 839 (emphasis added).
Chaves also reported that ``Informants from 64 percent of
predominantly African American congregations expressed a
willingness to apply for Government funds . . . Controlling for
other congregational features, predominantly black
congregations are five times more likely than other
congregations to seek public support for social service
activities.'' Id. at 841 (emphasis in original).
Anticipating increased involvement of faith-based
organizations in Federal social service programs, and in order
to facilitate small nongovernmental organizations'
participation in the programs covered by title II of H.R. 7
generally, subsection (o) of the bill authorizes, from amounts
made available to carry out the purposes of the Office of
Justice Programs, funds to provide training and technical
assistance, in procedures relating to potential application and
participation in programs covered by title II of H.R. 7 to
small nongovernmental organizations, as including religious
organizations, in an amount not to exceed $50 million.
Subsection (o) states that such aid may include assistance in
creating a 501(c)(3) organization, grant writing workshops, and
informational assistance regarding accounting, legal, and tax
issues, informational assistance regarding how to comply with
Federal nondiscrimination provisions. Subsection (o) also
provides that, in providing such assistance, priority shall be
given to small nongovernmental organizations serving rural and
urban communities.
EXISTING CHARITABLE CHOICE PROGRAMS HAVE MET WITH MUCH SUCCESS AND FEW
LAWSUITS AND OTHER PROBLEMS
Existing charitable choice programs have had a significant
impact on social welfare delivery. Dr. Amy Sherman of the
Hudson Institute has conducted the most extensive survey of
existing charitable choice programs. Dr. Sherman concluded
that, currently, ``All together, thousands of welfare
recipients are benefitting from services now offered through
FBOs [faith-based organizations] and congregations working in
tandem with local and state welfare agencies.'' \31\
---------------------------------------------------------------------------
\31\ Sherman, ``Growing Impact,'' at 8.
---------------------------------------------------------------------------
Dr. Sherman also found that fears of aggressive evangelism
by publicly funded faith-based organizations have little basis
in fact. According to Dr. Sherman:
[O]ut of the thousands of beneficiaries engaged in
programs offered by FBOs [faith-based organizations]
collaborating with Government, interviewees reported
only two complaints by clients who felt uncomfortable
with the religious organization from which they
received help. In both cases--in accordance with
Charitable Choice guidelines--the client simply opted
out of the faith-based program and enrolled in a
similar program operated by a secular provider. In
summary, in nearly all the examples of collaboration
studied, what Charitable Choice seeks to accomplish is
in fact being accomplished: the religious integrity of
the FBOs working with Government is being protected and
the civil liberties of program beneficiaries enrolled
in faith-based programs are being respected.\32\
---------------------------------------------------------------------------
\32\ Id. at 11 (emphasis added).
Religious groups in the nine states Dr. Sherman surveyed
also registered few complaints about their Government partners.
According to Dr. Sherman, ``The vast majority reported that the
church-state question was a `non-issue,' and that they enjoyed
the trust of their Government partners and that they had been
straightforward about their religious identity.'' \33\
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\33\ Id.
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The success of existing charitable choice programs has led
the National Conference of State Legislatures (``NCSL'') to
support their expansion. According to Sheri Steisel, director
of NCSL's Human Services Committee, ``In many communities, the
only institutions that are in a position to provide human
services are faith-based organizations. Providing grants to or
entering into cooperative agreements with faith-based and other
community organizations to provide Government services is
something that has proven effective in the states over the past
5 years. As welfare reform continues to evolve, it is important
that Government at all levels continues to explore innovative
ways to provide services to its constituents. We are extremely
pleased that the President is joining the states in exploring
these new opportunities.'' \34\
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\34\ News Release, ``Faith Based Initiatives Nothing New to
Nation's State Lawmakers'' (January 30, 2001).
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Only two challenges to the constitutional application and
implementation of charitable choice programs have been filed.
Both suits are ``as applied,'' rather than ``facial''
challenges, to 42 U.S.C. Sec. 604a. Each of these lawsuits was
filed after Presidential candidate George W. Bush officially
entered the race on June 12, 1999, and after then-Governor Bush
delivered his first major policy address on faith-based
organizations in Indianapolis, Indiana, on July 22, 1999.\35\
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\35\ While litigation challenging elements of charitable choice
programs has been minimal, H.R. 7, in subsection (n), contains a
compliance provision that provides that a party alleging that their
rights under section 1994A of H.R. 7 have been violated by a State or
local government may bring a civil action for injunctive relief
pursuant to 42 U.S.C. Sec. 1983 (section 1979 of the Revised Statutes)
against the State official or local government agency that has
allegedly committed such violation. A party alleging that the rights of
the party under section 1994A have been violated by the Federal
Government may bring a civil action for injunctive relief in Federal
district court against the official or Government agency that has
allegedly committed such violation. This subsection limits parties
alleging that their rights under section 1994A have been violated to
injunctive relief, just as the 1996 Welfare Reform Act's charitable
choice limited liability for violations of its provisions to injunctive
relief.
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Charitable choice provisions provide for a variety of
safeguards to prevent their unconstitutional application. In
order to obtain any Government funds, faith-based organizations
must demonstrate that they can effectively deliver the services
they are promising, respect clients' civil liberties, and
account for all public monies spent.
Subsection (i) of the Charitable Choice Act of 2001 also
provides that a religious organization providing assistance
under any covered program shall be subject to the same
regulations as other nongovernmental organizations to account
in accord with generally accepted accounting principles for the
use of such funds and its performance of the programs. Also,
under subsection (i)(2)(A), religious organizations taking part
in a covered program through a grant or cooperative agreement
must segregate Government funds provided under such program
into a separate account or accounts, and only the Government
funds in the separate accounts will be subject to audit by the
Government for purposes of monitoring their use in the covered
Federal program. This is done, in part, to limit the scope of
audits to funds from Government sources and thereby shield
other accounts from Government monitoring.\36\ Under subsection
(i)(2)(B), religious organizations taking part in a covered
program through indirect forms of assistance may, at their
discretion, segregate Government funds provided under such
program into a separate account or accounts. If they do so,
only the Government funds in the separate accounts will be
subject to audit by the Government.\37\
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\36\ The separate accounts are for purposes of segregating the
funds used during the course of a Federal program described in
subsection (c)(4), and isolating them in the event of a Government
audit of their use in a covered program, and for no other purpose.
\37\ Because indirect aid to a faith-based organization is ``akin
to the Government issuing a paycheck to an employee who, in turn,
donates a portion of that check to a religious institution,'' Mitchell
v. Helms, 530 U.S. 793, 841 (O'Connor, J., concurring in the judgment)
(2000), such aid is permissible under the Establishment Clause and need
not be segregated into a separate account for monitoring purposes.
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Further, it is not uncommon for program policies to require
of providers periodic compliance self-audits in which any
discrepancies uncovered in such a self-audit must be promptly
reported to the Government along with a plan to timely correct
any deficiencies. H.R. 7, in subsection (i)(3), requires such a
self-audit for faith-based organizations receiving Federal
funds. This is done to further meet the monitoring requirements
required by Mitchell v. Helms to prevent diversion of funds to
religious indoctrination.\38\
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\38\ 120 S.Ct. 2530, 2541 (2000) (upholding constitutionality of
school aid program known as chapter 2, in which the Federal Government
distributes funds to State and local governmental agencies, which in
turn lend educational materials and equipment to public and private
schools, including religious schools, with the enrollment of each
participating school determining the amount of aid that it receives).
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A CONSTITUTIONAL ANALYSIS OF CHARITABLE CHOICE PRINCIPLES BEGINS WITH
AN ASSESSMENT OF THEIR NEUTRALITY TOWARD RELIGION
In order to minimize governmental influence over individual
religious choices, governmental programs should be neutral
regarding the individual choices, whether religious or
nonreligious, of the needy who are served by these programs.
Recently, a majority of the Justices of the Supreme Court
emphasized the importance of this neutrality principle in
deciding cases under the Establishment Clause in Mitchell v.
Helms.\39\ The plurality opinion stated that, ``In
distinguishing between indoctrination that is attributable to
the State and indoctrination that is not, we have consistently
turned to the principle of neutrality, upholding aid that is
offered to a broad range of groups or persons without regard to
their religion . . . [I]f the Government, seeking to further
some legitimate secular purpose, offers aid on the same terms,
without regard to religion, to all who adequately further that
purpose [,] then it is fair to say that any aid going to a
religious recipient only has the effect of furthering that
secular purpose.'' \40\ Justice O'Connor, in her concurring
opinion in Helms, in which she was joined by Justice Breyer,
also acknowledged that ``neutrality is an important reason for
upholding Government-aid programs,'' a reason which the Supreme
Court's recent cases have ``emphasized . . . repeatedly.'' \41\
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\39\ Id. at 2541 (2000).
\40\ Mitchell v. Helms, 120 S.Ct. 2530, 2541 (2000) (plurality
opinion).
\41\ Mitchell v. Helms, 120 S.Ct. 2530, 2557 (2000) (O'Connor, J.,
concurring in the judgment).
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From Justice O'Connor's opinion, when combined with the
numbers comprising the plurality, it can be said that: neutral,
indirect aid to a religious organization does not violate the
Establishment Clause,\42\ and neutral, direct aid to a
religious organization does not, without more, violate the
Establishment Clause.\43\
---------------------------------------------------------------------------
\42\ Id. at 2558-59 (concurring opinion).
\43\ Id. at 2557 (concurring opinion).
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Other cases decided by the Supreme Court also make clear
that neutrally administered Government programs, open to all,
are constitutional.\44\ The Committee also notes that the
Supreme Court has never struck down a governmental funding
program--state or Federal--as violative of the Establishment
Clause where the program was directed to the needs of social
services or health care.\45\
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\44\ See Agostini v. Felton, 521 U.S. 203, 231-32 (1997) (``[I]t is
clear that title I [educational] services are allocated on the basis of
criteria that neither favor nor disfavor religion . . . The services
are available to all children who meet the act's eligibility
requirements, no matter what their religious beliefs or where they go
to school . . . The Board's program does not, therefore, give aid
recipients any incentive to modify their religious beliefs or practices
in order to obtain those services.''); Zobrest v. Catalina Foothills
School District, 509 U.S. 1, 8 (1993) (sustaining section of Federal
statute providing all ``disabled'' children with necessary aid, stating
``We have never said that religious institutions are disabled by the
First Amendment from participating in publicly sponsored social welfare
programs [f]or if the Establishment Clause did bar religious groups
from receiving general Government benefits, then a church could not be
protected by the police and fire departments, or have its public
sidewalk kept in repair.''); Witters v. Washington Department of
Services for the Blind, 474 U.S. 481, 487-88 (1986) (sustaining
Washington law granting all eligible blind persons vocational
assistance, including assistance at religious institutions); Mueller v.
Allen, 463 U.S. 388, 398-99 (1983) (sustaining Minnesota statute
allowing all parents to deduct actual costs of school, including
religious school, tuition, textbooks, and transportation, from State
tax returns); Board of Ed. of Central School Dist. No. 1 v. Allen, 392
U.S. 236, 243-244 (1968) (sustaining New York law loaning secular
textbooks to all children, including those at religious schools);
Everson v. Board of Ed. of Ewing, 330 U.S. 1, 16-18 (1947) (sustaining
local ordinance authorizing all parents to deduct from their State tax
returns the costs of transporting their children to schools, including
religious schools, on public buses).
\45\ See Bowen v. Kendrick, 487 U.S. 589 (1988) (upholding the
direct Federal funding of faith-based counseling centers addressing
teenage sexuality under the Adolescent Family Life Act); Bradfield v.
Roberts, 175 U.S. 291 (1899) (upholding an agreement between the
Commissioners of the District of Columbia and a religiously affiliated
hospital whereby the Federal Government would pay for the construction
of a new building on the grounds of the hospital). Bradfield v. Roberts
was cited by the Supreme Court in Bowen, 487 U.S. at 609 (``We note in
addition that this Court has never held that religious institutions are
disabled by the First Amendment from participating in publicly
sponsored social welfare programs. To the contrary, in Bradfield v.
Roberts, the Court upheld an agreement between the Commissioners of the
District of Columbia and a religiously affiliated hospital whereby the
Federal Government would pay for the construction of a new building on
the grounds of the hospital. In effect, the Court refused to hold that
the mere fact that the hospital was `conducted under the auspices of
the Roman Catholic Church' was sufficient to alter the purely secular
legal character of the corporation, particularly in the absence of any
allegation that the hospital discriminated on the basis of religion or
operated in any way inconsistent with its secular charter. In the
Court's view, the giving of Federal aid to the hospital was entirely
consistent with the Establishment Clause, and the fact that the
hospital was religiously affiliated was `wholly immaterial.' '')
(citations omitted).
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DIRECT FUNDING OF FAITH-BASED ORGANIZATIONS TO HELP MEET BASIC HUMAN
NEEDS, THROUGH GRANTS AND COOPERATIVE AGREEMENTS, IS CONSTITUTIONAL
Direct payments may be made to faith-based organizations
for public purposes without violating the establishment clause.
The Supreme Court has held that faith-based organizations
providing services that meet social service needs may be
federally funded. In Bowen v. Kendrick,\46\ the Supreme Court
upheld the direct Federal funding of faith-based counseling
centers addressing teenage sexuality under the Adolescent
Family Life Act (``AFLA''), which was passed by Congress in
1981 in response to the ``severe adverse health, social, and
economic consequences'' that often follow pregnancy and
childbirth among unmarried adolescents. The AFLA established a
program for providing direct monetary grants to public or
nonprofit private organizations or agencies ``for services and
research in the area of premarital adolescent sexual relations
and pregnancy.'' \47\
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\46\ 487 U.S. 589 (1988).
\47\ S.Rep. No. 97-161, at 1 (1981).
---------------------------------------------------------------------------
In Bowen, the Court found that Congress had expressly
recognized that Government alone could not solve the problems
of adolescent premarital sexual relations, and that it intended
through its legislation to encourage greater involvement from
faith-based organizations in addressing these issues.\48\ The
Court was satisfied that encouraging such involvement by faith-
based organizations served a clear secular purpose.\49\ The
Court also found that there was nothing inherently religious
about services funded under the AFLA.\50\ The Court saw nothing
troubling in the congressional recognition that religion and
religious organizations play an important part in solving
social ills.\51\ Finally, the Court refused to countenance the
notion that a faith-based organization could not receive direct
Federal funds for the provision of public welfare services
without impermissibly lending the imprimatur of Government on
religious activity.\52\
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\48\ See Bowen v. Kendrick, 487 U.S. 589, 595-96 (1988) (``Indeed,
Congress expressly recognized that legislative or governmental action
alone would be insufficient . . . Accordingly, the AFLA expressly
states that federally provided services in this area should promote the
involvement of parents, and should ``emphasize the provision of support
by other family members, religious and charitable organizations,
voluntary associations, and other groups.'' [42 U.S.C.
Sec. 300z(a)(10)(C)].'') (emphasis added).
\49\ See id., at 602 (``As we see it, it is clear from the face of
the statute that the AFLA was motivated primarily, if not entirely, by
a legitimate secular purpose--the elimination or reduction of social
and economic problems caused by teenage sexuality, pregnancy, and
parenthood. [42 U.S.C. Sec. Sec. 300z(a), (b)].'').
\50\ See id., at 594, 605 (1988) (``[T]he statute contains a
listing of `necessary services' that may be funded. These services
include pregnancy testing and maternity counseling, adoption counseling
and referral services, prenatal and postnatal health care, nutritional
information, counseling, child care, mental health services, and
perhaps most importantly for present purposes, `educational services
relating to family life and problems associated with adolescent
premarital sexual relations' . . . Certainly it is true that a
substantial part of the services listed as ``necessary services'' under
the act involve some sort of education or counseling, but there is
nothing inherently religious about these activities and appellees do
not contend that, by themselves, the AFLA's `necessary services'
somehow have the primary effect of advancing religion.'').
\51\ See id., at 606-07 (1988) (``Putting aside for the moment the
possible role of religious organizations as grantees, these provisions
of the statute reflect at most Congress' considered judgment that
religious organizations can help solve the problems to which the AFLA
is addressed . . . Nothing in our previous cases prevents Congress from
making such a judgment or from recognizing the important part that
religion or religious organizations may play in resolving certain
secular problems.'').
\52\ See id., at 613-14 (1988) (``The facially neutral projects
authorized by the AFLA--including pregnancy testing, adoption
counseling and referral services, prenatal and postnatal care,
educational services, residential care, child care, consumer education,
etc.--are not themselves `specifically religious activities,' and they
are not converted into such activities by the fact that they are
carried out by organizations with religious affiliations.'').
---------------------------------------------------------------------------
Further, in Committee for Public Education and Religious
Liberty v. Regan,\53\ the Supreme Court explained that, ``We
decline to embrace a formalistic dichotomy that bears so little
relationship either to common sense or the realities of school
finance. None of our cases requires us to invalidate these
reimbursements simply because they involve payments in cash.
The Court `has not accepted the recurrent argument that all aid
is forbidden because aid to one aspect of an institution frees
it to spend its other resources on religious ends.' '').
---------------------------------------------------------------------------
\53\ 444 U.S. 646, 658 (1980) (upholding reimbursements to
religious K-12 schools for State-required testing and rejecting a rule
that direct cash payment was never permitted). The Supreme Court has
been especially sensitive to Establishment Clause issues in the context
of K-12 schools.
---------------------------------------------------------------------------
THE SUPREME COURT HAS REJECTED OBJECTIONS TO FUNDING FAITH-BASED
ORGANIZATIONS THAT ARE PREMISED ON THE DISCRIMINATORY NOTION THAT THEIR
EMPLOYEES CANNOT BE TRUSTED TO FOLLOW GUIDELINES
Arguments that employees of faith-based organizations
simply cannot be trusted to follow guidelines preventing the
use of Government funds for proselytizing activities have been
decisively rejected by the Supreme Court. Both the plurality
opinion and the opinion of Justice O'Connor in Mitchell v.
Helms stand for the proposition that members of religious
organizations should be presumed to be acting in good
faith.\54\
---------------------------------------------------------------------------
\54\ See Mitchell v. Helms, 120 S.Ct. 2530, 2547 (2000) (plurality
opinion) (``So long as the governmental aid is not itself unsuitable
for use in the public schools because of religious content, . . . and
eligibility for aid is determined in a constitutionally permissible
manner, any use of that aid to indoctrinate cannot be attributed to the
Government and is thus not of constitutional concern.'') (quotations
omitted); id., at 2570 (O'Connor, J., concurring in the judgment)
(``[T]he Court's willingness to assume that religious school
instructors will inculcate religion has not caused us to presume also
that such instructors will be unable to follow secular restrictions on
the use of textbooks . . . [I]t is entirely proper to presume that
these school officials will act in good faith.'').
---------------------------------------------------------------------------
Some critics claim that it is unconstitutional for direct
grants to be awarded to ``pervasively sectarian'' organizations
which would risk ``an excessive entanglement [of Government]
with religion.'' The so-called ``pervasively sectarian'' test
was first articulated in Lemon v. Kurtzman.\55\ The last case
in which the Court struck down governmental aid using the
``pervasively sectarian'' test was Grand Rapids School District
v. Ball,\56\ but Ball was recently discredited and partly
overruled in Agostini v. Felton.\57\ Even Justice Blackmun, in
a dissenting opinion joined by Justices Brennan, Marshall, and
Stevens, described the phrase ``pervasively sectarian'' as ``a
vaguely defined term of art.'' Bowen v. Kendrick, 487 U.S. 589,
631 (1988) (Blackmun, J., dissenting). In Mitchell v.
Helms,\58\ the majority of Justices reversed an appeals court
holding that providing educational materials and equipment to
pervasively sectarian schools was unconstitutional. As the
Congressional Research Service concluded in its December 27,
2000, Report to Congress on Charitable Choice, ``In its most
recent decisions [,] the Court appears to have abandoned the
presumption that some religious institutions, such as sectarian
elementary and secondary schools, are so pervasively sectarian
that they are constitutionally ineligible to participate in
direct public aid programs . . . It also seems clear that for a
different majority [of six] Justices (those joining in the
Thomas and O'Connor opinions), the question of whether a
recipient institution is pervasively sectarian is no longer a
constitutionally determinative factor.'' CRS Report, Charitable
Choice: Constitutional Issues and Developments Through the
106th Congress (December 27, 2000) at 29, 32. Recently, the
Fourth Circuit Court of Appeals in Columbia Union College v.
Oliver, 2001 WL 716726 (4th Cir.) (June 26, 2001), held that
the Constitution allows the Government to provide direct aid to
a religious organization ``without resort to [a court's]
examining'' its ``pervasively sectarian status,'' as long as
there are protections in place prohibiting Federal funds from
being used for proselytizing activities. Id. at * 7.\59\
---------------------------------------------------------------------------
\55\ 403 U.S. 602, 613 (1971). See also Hunt v. McNair, 413 U.S.
734, 743 (1973) (``Aid normally may be thought to have a primary effect
of advancing religion when it flows to an institution in which religion
is so pervasive that a substantial portion of its functions are
subsumed in the religious mission or when it funds a specifically
religious activity in an otherwise substantially secular setting.'').
\56\ 473 U.S. 373 (1985).
\57\ 521 U.S. 203, 219-23 (1997) (``Our more recent cases have
undermined the assumptions upon which Ball [] relied . . . What has
changed since we decided Ball . . . is our understanding of the
criteria used to assess whether aid to religion has an impermissible
effect.''). That understanding today rejects the notion that members of
faith-based organizations simply cannot be trusted to follow guidelines
preventing the use of Government funds for proselytizing. Both the
plurality opinion and the opinion of Justice O'Connor in Mitchell v.
Helms stand for the proposition that members of religious organizations
should always be presumed to be acting in good faith. See Mitchell v.
Helms, 120 S.Ct. 2530, 2547 (2000) (plurality opinion) (``So long as
the governmental aid is not itself unsuitable for use in the public
schools because of religious content, . . . and eligibility for aid is
determined in a constitutionally permissible manner, any use of that
aid to indoctrinate cannot be attributed to the Government and is thus
not of constitutional concern.'') (quotations omitted); id., at 2570
(O'Connor, J., concurring) (``[T]he Court's willingness to assume that
religious school instructors will inculcate religion has not caused us
to presume also that such instructors will be unable to follow secular
restrictions on the use of textbooks . . . [I]t is entirely proper to
presume that these school officials will act in good faith.'').
\58\ 120 S.Ct. 2530 (2000).
\59\ When President Clinton signed the re-authorization measure for
the Community Services Block Grants Program (``CSBG'') into law on
October 27, 1998, his accompanying statement regarding its charitable
choice provisions relied on the ``pervasively sectarian'' standard that
the courts have since abandoned. That statement stated that ``The
Department of Justice advises, however, that the provision that allows
religiously affiliated organizations to be providers under CSBG would
be unconstitutional if and to the extent it were construed to permit
governmental funding of `pervasively sectarian' organizations, as that
term has been defined by the courts. Accordingly, I construe the act as
forbidding the funding of pervasively sectarian organizations and as
permitting Federal, State, and local governments involved in disbursing
CSBG funds to take into account the structure and operations of a
religious organization in determining whether such an organization is
pervasively sectarian.'' 134 Weekly Compilation of Presidential
Documents 2148 (Nov. 2, 1998) (Statement on Signing the Community
Opportunities, Accountability, and Training and Educational Services
Act of 1998). President Clinton's later statements on charitable choice
provisions in October and December 2000, do not rely on the pervasively
sectarian test. See supra, note 13.
---------------------------------------------------------------------------
Despite the abandonment of the ``pervasively sectarian''
test by the courts, it continues to lead to the exclusion of
faith-based organizations from equal participation in
application processes for Federal social service funds.\60\
---------------------------------------------------------------------------
\60\ See CRS Report to Congress, RL30388, Charitable Choice:
Constitutional Issues and Developments Through the 106th Congress
(updated December 27, 2000) at 1 (``[T]he establishment clause has in
the past generally been interpreted to bar Government from providing
direct assistance to organizations that are `pervasively sectarian.' As
a consequence, Government funding agencies have often required
religious social services providers, as conditions of receiving public
funds, to be incorporated separately from their sponsoring religious
institutions . . . and to remove religious symbols from the premises in
which the services are provided.''); see also Congressional Research
Service, RS20809: Public Aid and Faith-Based Organizations (Charitable
Choice): An Overview (updated April 18, 2001) at 2-3
(``[I]nterpretations and applications of the establishment of religion
clause of the First Amendment as well as of the sometimes more strict
provisions of State constitutions have in the past generally required
programs operated by religious organizations that receive public
funding in the form of grants or contracts to be essentially secular in
nature . . . Moreover, religious entities that have been found to be
`pervasively sectarian,' i.e., entities in which religion is a
pervasive element of all that they do, have generally been
constitutionally ineligible to participate in direct funding programs,
because they have been deemed unable to separate their secular
functions from their religious functions so that public aid can be
confined to the former. Charitable choice attempts to move beyond these
restrictions and allow faith-based organizations to participate in
publicly funded social services programs while retaining their
religious character.''). Although the courts have now abandoned the
``pervasively sectarian'' test, this rule to exclude certain religious
organizations is still present in Federal statutes and regulations, and
too often guides decisions by federal, State, and local grant managers.
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INDIRECTLY FUNDED CHARITABLE CHOICE PROGRAMS ARE CONSTITUTIONAL
Subsection (l) of title II of H.R. 7 authorizes the
Secretary of the department administering a covered program to
direct the disbursement of some or all of the funds, if
determined by the Secretary to be feasible and efficient, in
the form of indirect assistance. H.R. 7 defines ``indirect
assistance'' as that in which assistance funds find their way
to an organization ``only as a result of the private choices of
individual beneficiaries,'' in accordance with Supreme Court
precedent, drawing on language from Witters v. Washington
Department of Services for the Blind,\61\ and Mueller v.
Allen.\62\ ``Indirect'' means of funding are flexible, and
include more than vouchers and certificates.
---------------------------------------------------------------------------
\61\ 474 U.S. 481, 488 (1985) (opinion written by Justice Marshall)
(``Certain aspects of Washington's program are central to our inquiry.
As far as the record shows, vocational assistance provided under the
Washington program is paid directly to the student, who transmits it to
the educational institution of his or her choice. Any aid provided
under Washington's program that ultimately flows to religious
institutions does so only as a result of the genuinely independent and
private choices of aid recipients.'').
\62\ 463 U.S. 388, 399 (1983) (``Where, as here, aid to parochial
schools is available only as a result of decisions of individual
parents no imprimatur of State approval can be deemed to have been
conferred on any particular religion, or on religion generally.'').
---------------------------------------------------------------------------
Charitable choice programs administered through the use of
vouchers or certificates to individuals, who may then choose to
give them to nonreligious or religious organizations in return
for social services, enjoy the widest constitutional berth.
When voucher programs are created, and individuals are allowed
to redeem their vouchers at approved sites, the latitude for
religious expression and practice at those sites can be far
greater. Where the design of the charitable choice program has
not predetermined where the Government funding should go but
has given a free choice to the immediate beneficiaries of the
programs--for example, the voucher recipients--the Supreme
Court has held such programs constitutional even though
institutions presumed to be pervasively religious have
benefitted.\63\ So long as the initial beneficiaries have a
choice about where to redeem the vouchers or certificates, and
a range of choices are available including religious and
nonreligious social service organizations, such programs do not
violate the First Amendment.
---------------------------------------------------------------------------
\63\ See Mueller v. Allen, 463 U.S. 388, 399 (1983); Witters v.
Washington Department of Services for the Blind, 474 U.S. 481, 487
(1986); Zobrest v. Catalina Foothills School District, 509 U.S. 1, 10
(1993).
---------------------------------------------------------------------------
In Mueller v. Allen,\64\ the Supreme Court upheld a
Minnesota statute allowing state taxpayers, in computing their
state income tax, to deduct expenses incurred in providing
``tuition, textbooks and transportation'' for their children
attending elementary or secondary school, either nonreligious
or religious. The Court stated that
---------------------------------------------------------------------------
\64\ 463 U.S. 388 (1983).
by channeling whatever assistance it may provide to
parochial schools through individual parents, Minnesota
has reduced the Establishment Clause objections to
which its action is subject . . . It is true, of
course, that financial assistance provided to parents
ultimately has an economic effect comparable to that of
aid given directly to the schools attended by their
children. It is also true, however, that under
Minnesota's arrangement public funds become available
only as a result of numerous, private choices of
individual parents of school-age children . . . Where,
as here, aid to parochial schools is available only as
a result of decisions of individual parents no
imprimatur of State approval can be deemed to have been
conferred on any particular religion, or on religion
generally.\65\
---------------------------------------------------------------------------
\65\ Id. at 399.
In Witters v. Washington Department of Services for the
Blind,\66\ the Supreme Court upheld a program allowing a
student who was pursuing a biblical studies degree at a
Christian college to receive financial vocational assistance.
The Court stated
---------------------------------------------------------------------------
\66\ 474 U.S. 481 (1985).
Certain aspects of Washington's program are central to
our inquiry. As far as the record shows, vocational
assistance provided under the Washington program is
paid directly to the student, who transmits it to the
educational institution of his or her choice. Any aid
provided under Washington's program that ultimately
flows to religious institutions does so only as a
result of the genuinely independent and private choices
of aid recipients. Washington's program is made
available generally without regard to the sectarian-
nonsectarian, or public-nonpublic nature of the
institution benefitted, and is in no way skewed towards
religion . . . It creates no financial incentive for
students to undertake sectarian education. It does not
tend to provide greater or broader benefits for
recipients who apply their aid to religious education,
nor are the full benefits of the program limited, in
large part or in whole, to students at sectarian
institutions. On the contrary, aid recipients have full
opportunity to expend vocational rehabilitation aid on
wholly secular education, and as a practical matter
have rather greater prospects to do so . . . In this
case, the fact that aid goes to individuals means that
the decision to support religious education is made by
the individual, not by the State . . . On the facts we
have set out, it does not seem appropriate to view any
aid ultimately flowing to the Inland Empire School of
the Bible as resulting from a state action sponsoring
or subsidizing religion.'' \67\
---------------------------------------------------------------------------
\67\ Id. at 488 (emphasis added).
In Zobrest v. Catalina Foothills School District,\68\ the
Supreme Court upheld a program allowing parents of a deaf
student attending Catholic high school to require the public
school district to provide interpreter for the student that
would interpret classes that included religious instruction.
The Court upheld the program, citing Mueller, as follows: ``We
also pointed out that under Minnesota's scheme, public funds
become available to sectarian schools only as a result of
numerous private choices of individual parents of school-age
children, thus distinguishing Mueller from our other cases
involving the direct transmission of assistance from the State
to the schools themselves.'' \69\
---------------------------------------------------------------------------
\68\ 509 U.S. 1 (1993).
\69\ Id. at 9.
---------------------------------------------------------------------------
H.R. 7 CONTAINS CONSTITUTIONALLY ADEQUATE SAFEGUARDS
When Government appropriates tax monies, it has a duty to
reasonably account for how such funds are utilized. Regulatory
controls that keep track of funds appropriated under neutral
social service programs via grants or in-kind services--such as
those appropriately attaching to organizations receiving
support under programs following charitable choice principles--
are proper to help ensure that the monies actually benefit the
poor and the needy as intended.
Such controls are incorporated in H.R. 7. Subsection (i) of
the Charitable Choice Act of 2001 provides that, ``a religious
organization providing assistance under any [specified program]
shall be subject to the same regulations as other
nongovernmental organizations to account in accord with
generally accepted accounting principles for the use of such
funds and its performance of such program.'' H.R. 7 also makes
the creation of separate accounts, containing only Federal
funds received, mandatory for programs covered by title II of
H.R. 7 that are directly funded.\70\
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\70\ Subsection (k) also provides that, ``If a State or local
government contributes State or local funds to carry out a [specified
program], the State or local government may segregate the State or
local funds from the Federal funds provided to carry out the program or
may commingle the State or local funds with the Federal funds. If the
State or local government commingles the State or local funds, the
provisions of this section shall apply to the commingled funds in the
same manner, and to the same extent, as the provisions apply to the
Federal funds.''
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The required accounting should be evenhanded for all
providers, whether religious or nonreligious. In her concurring
opinion in Mitchell v. Helms, Justice O'Connor made clear that
as long as there are safeguards for preventing and detecting
diversion of funds, it is not a constitutional problem if
occasional mistakes are made.\71\
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\71\ See Mitchell v. Helms, 120 S.Ct. 2530, 2558 (2000) (O'Connor,
J., concurring in the judgment). See also Bowen v. Kendrick, 487 U.S.
589, 615 (1988) (upholding program allowing Federal funds be given to
faith-based organizations for family counseling) (``We note in addition
that the [Adolescent Family Life Act] requires each grantee to undergo
evaluations of the services it provides, and also requires grantees to
`make such reports concerning its use of Federal funds as the
[Government] may require.' The application requirements of the act, as
well, require potential grantees to disclose in detail exactly what
services they intend to provide and how they will be provided. These
provisions, taken together, create a mechanism whereby the [Government]
can police the grants that are given out under the act to ensure that
Federal funds are not used for impermissible purposes.'').
---------------------------------------------------------------------------
In the final part of her opinion, Justice O'Connor
explained why safeguards in the Federal educational program at
issue in Mitchell reassured her that the program, as applied,
was not violative of the Establishment Clause. According to
Justice O'Connor, a program of aid need not be failsafe, nor
does every program require pervasive monitoring.\72\ The
statute limited aid to ``secular, neutral, and nonideological''
assistance, required that the aid supplement rather than
supplant private-source funds, and expressly prohibited use of
the aid for ``religious worship or instruction.'' \73\ State
educational authorities required religious schools to sign
assurances of compliance with the above-quoted statutory
spending prohibition made a term of the contract.\74\ The state
conducted monitoring visits, however infrequently, and did a
random review of Government-purchased library books for their
religious content.\75\ There was also monitoring of religious
schools by local public school districts, including review of
required project proposals submitted by the religious schools
and annual program-review visits to each recipient school.\76\
The monitoring did catch instances of actual diversion,
although not a substantial number, and Justice O'Connor was
encouraged that when problems were detected they were
corrected.\77\
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\72\ Id., 120 S.Ct. at 2569 (O'Connor, J., concurring in the
judgment).
\73\ Id.
\74\ Id.
\75\ Id.
\76\ Id. at 2569-70.
\77\ Id. at 2571-72.
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The charitable choice principles embodied in H.R. 7 address
Justice O'Connor's concerns. Subsection (i) of title II of H.R.
7 provides that a religious organization providing assistance
under any covered program shall be subject to the same
regulations as other non-governmental organizations to account
in accord with generally accepted accounting principles for the
use of such funds and its performance of such programs. In
addition, a religious organization providing assistance through
a grant or cooperative agreement under a covered program shall
segregate Government funds provided under such program into a
separate account or accounts, and the separate accounts
consisting of funds from the Government, but only such separate
accounts, shall be subject to audit by the Government regarding
the administration of the covered program. H.R. 7 further
requires a religious organization providing services under any
covered program to conduct annually a self audit for compliance
with its duties under this subsection and to submit a copy of
the self audit to the appropriate Federal, State, or local
government agency, along with a plan to timely correct
variances, if any, identified in the self audit. H.R. 7 also
requires that such a religious organization sign a certificate
of compliance that certifies it is aware of and will comply
with its duties under H.R. 7.
H.R. 7 PRESERVES EXISTING GUARANTEES OF INSTITUTIONAL AUTONOMY FOR
RELIGIOUS ORGANIZATIONS UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964
One of the most important charitable choice principles is
the guarantee of institutional autonomy that allows faith-based
organizations to select staff on a religious basis. Faith-based
organizations cannot be expected to sustain their religious
drive without the ability to employ individuals who share the
tenets and practices of their faith.\78\ In order to preserve
the religious character of faith-based organizations,
subsection (d) of the Charitable Choice Act of 2001 provides
that
---------------------------------------------------------------------------
\78\ Many faith-based organizations do not staff on a religious
basis, nor do they desire to do so. However, many others do and believe
it is essential to their continued vitality that they be able to
continue to do so. Further, many faith-based organizations that staff
on a religious basis do so with respect to some jobs but not others.
Finally, many faith-based organizations do not staff on the basis of
religion in any affirmative sense, but they do require that employees
not be in open defiance of the organization's creed or teachings.
(1) IN GENERAL. A religious organization that provides
assistance under [the specified programs] shall have
the right to retain its autonomy from Federal, State,
and local governments, including such organization's
control over the definition, development, practice, and
---------------------------------------------------------------------------
expression of its religious beliefs.
(2) ADDITIONAL SAFEGUARDS. Neither the Federal
Government nor a State or local government with Federal
funds shall require a religious organization in order
to be eligible to provide assistance under [the
specified programs] to--(A) alter its form of internal
governance or provisions in its charter documents; or
(B) remove religious art, icons, scripture, or other
symbols, or to change its name, because such symbols or
names are of a religious character.
Many faith-based organizations believe that they cannot
maintain their religious vision over a sustained time period
without the ability to replenish their staff with individuals
who share the tenets and doctrines of the association. They
prefer working with those of the same faith, not out of animus
toward others, but out of a desire to surround themselves with
those who reinforce their faith. This guaranteed ability is
central to each organization's freedom to define its own
mission according to the dictates of its faith. It was for this
reason that Congress wrote an exemption from religious
discrimination by religious employers into title VII of the
Civil Rights Act of 1964.\79\ Charitable choice laws
specifically provide that faith-based organizations receiving
Government funds retain this limited exemption from Federal
employment nondiscrimination laws. H.R. 7 does this as well,
using the same language from the 1996 Welfare Reform Act,\80\
with an additional clause making clear that contrary provisions
in the Federal programs covered by title II of H.R. 7 have no
force and effect \81\ and that the duties of religious
organizations not to discriminate based on race, color, sex,
and national origin--from which religious organizations are not
exempt under title VII--are retained.\82\ While it is essential
that faith-based organizations be permitted to make employment
decisions based on religious considerations, along with all
other providers, faith-based organizations must obey Federal
civil rights laws prohibiting discrimination on the basis of
race, color, national origin, gender, age, and disability.
Subsection (e) makes clear that religious organizations retain
their duty to follow the title VII nondiscrimination provisions
regarding race, color, sex, and national origin, from which
religious organizations are not exempt under title VII.\83\
H.R. 7 maintains the status quo regarding the Sec. 702(a)
exemption in title VII. Courts have held that a religious
organization does not forfeit the Sec. 702(a) exemption just
because the organization is a recipient of Government
funds.\84\
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\79\Section 702 of the Civil Rights Act of 1964 (42 U.S.C.
Sec. 2000e-1(a)) states, ``This subchapter shall not apply to an
employer with respect to the employment of aliens outside any State, or
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.''
\80\ See 42 U.S.C. Sec. 604a (``(f) Employment practices.--A
religious organization's exemption provided under section 2000e-1 of
this title regarding employment practices shall not be affected by its
participation in, or receipt of funds from, programs described in
subsection (a)(2) of this section.'').
\81\ This additional clause was not necessary in the 1996 Welfare
Reform Act because it codified charitable choice rules for a new
program, whereas H.R. 7 covers already-existing programs that may have
conflicting provisions. The 1996 Welfare Reform Act replaced the Aid to
Families with Dependent Children program (``AFDC'') with the Temporary
Assistance to Needy Families (``TANF'') program, shifting welfare
responsibilities from the Federal Government to the states.
\82\ Subsection (e) of the Charitable Choice Act of 2001 states:
``A religious organization's exemption provided under section 702 of
the Civil Rights Act of 1964 (42 U.S.C. 2000e-1) regarding employment
practices shall not be affected by its participation in, or receipt of
funds from, programs described in subsection (c)(4), and any provision
in such programs that is inconsistent with or would diminish the
exercise of an organization's autonomy recognized in section 702 or in
this section shall have no effect. Nothing in this section alters the
duty of a religious organization to comply with the nondiscrimination
provisions of title VII of the Civil Rights Act of 1964 in the use of
funds from programs described in subsection (c)(4).'' The latter
sentence, like the provisions in subsection (f), are simply truisms,
but they are included to avoid doubt about the continued applicability
of these civil rights laws.
\83\ Subsection (f) of the Charitable Choice Act of 2001 makes
clear that, ``Nothing in this section shall alter the duty of a
religious organization receiving assistance or providing services under
any [covered program] to comply with the nondiscrimination provisions
in title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.)
(prohibiting discrimination on the basis of race, color, and national
origin), title IX of the Education Amendments of 1972 (20 U.S.C. 1681-
1686) (prohibiting discrimination in educational institutions on the
basis of sex and visual impairment), section 504 of the Rehabilitation
Act of 1973 (29 U.S.C. 794) (prohibiting discrimination against
otherwise qualified disabled individuals), and the Age Discrimination
Act of 1975 (42 U.S.C. 6101-6107) (prohibiting discrimination on the
basis of age).'' title VI of the Civil Rights Act of 1964 prohibits
racial discrimination by those administering a social service program
with Government aid. See 42 U.S.C. Sec. 2000d (``No person in the
United States shall, on the ground of race, color, or national origin,
be excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity receiving
Federal financial assistance . . .''). Further, section 504 of the
Rehabilitation Act provides that, ``No otherwise qualified handicapped
individual . . . shall, solely by reason of his handicap, be excluded
from the participation in, be denied the benefits of, or be subjected
to discrimination under any program or activity receiving Federal
financial assistance . . .'' 29 U.S.C. Sec. 794. Section 504 affords
disabled individuals the opportunity to participate in and benefit from
programs offered by the recipient of Federal financial assistance by
providing them ``meaningful access to the benefit that the grantee
offers.'' Alexander v. Choate, 469 U.S. 287, 301, 304 (1985). Federal
grantees need not make `` `fundamental' '' or `` `substantial' ''
changes in their programs to accommodate the disabled, id. at 300, but
``reasonable accommodations in the grantee's program or benefit may
have to be made,'' to assure meaningful access by those with a
disability. Id. at 301.
\84\ See Hall v. Baptist Memorial Health Care Corp., 215 F.3d 618,
625 (6th Cir. 2000) (dismissing religious discrimination claim filed by
employee against religious organization because organization was exempt
from title VII and the receipt of substantial Government funding did
not bring about a waiver of the exemption); Siegel v. Truett-McConnell
College, 13 F. Supp.2d 1335, 1343-45 (N.D. Ga. 1994), aff'd, 73 F.3d
1108 (11th Cir. 1995) (table) (dismissing religious discrimination
claim filed by faculty member against religious college because college
was exempt from title VII and the receipt of substantial Government
funding did not bring about a waiver of the exemption or violate the
Establishment Clause); Young v. Shawnee Mission Medical Center, 1988
U.S. Dist. LEXIS 12248 (D. Kan. Oct. 21, 1988) (holding that religious
hospital did not lose title VII exemption merely because it received
Federal Medicare payments); see Little v. Wuerl, 929 F.2d 944, 951 (3d
Cir. 1991) (holding that exemption to title VII for religious staffing
by a religious organization is not waivable); Ward v. Hengle, 706
N.E.2d 392, 395 (Ohio App.1997), app'l denied, 692 N.E.2d 617 (Ohio
1998) (holding that exemption to title VII for religious staffing by a
religious organization is not waivable); Arriaga v. Loma Linda
University, 13 Cal. Rptr.2d 619 (Cal. App. 1992) (holding that
religious exemption in state employment nondiscrimination law was not
lost merely because religious college received state funding); Saucier
v. Employment Security Dept., 954 P.2d 285 (Wash. App. 1998) (holding
that Salvation Army's religious exemption from state unemployment
compensation tax does not violate Establishment Clause merely because
the job of a former employee in question, a drug abuse counselor, was
funded by Federal and state grants).
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Occasionally, the charge is made that charitable choice is
Government-funded job discrimination. This is untrue. The
purpose of charitable choice funding is not to create jobs, or
to fill the coffers of faith-based organizations, but to fund
social services for those in need. It is the faith-based
organization, of course, that is making staffing decision on
the basis of religion, not the Government.\85\ Section 702(a)
of the Civil Rights Act of 1964 has for decades exempted
nonprofit private religious organizations, engaged in both
religious and nonreligious nonprofit activities, from title
VII's prohibition on discrimination in employment on the basis
of religion.\86\ As enacted in 1964, the section 702 exemption
permitted religious employers to discriminate on religious
grounds in employment only with regard to ``religious
activities.'' \87\ The 1972 amendment to section 702 expanded
the exemption to permit religious employment discrimination
with regard to all activities conducted by the religious
employer regardless of whether they were religious or
nonreligious in nature.\88\ The Supreme Court, including
Justices Brennan and Marshall, upheld this expanded exemption
in Corporation of the Presiding Bishop of the Church of Jesus
Christ of Latter-day Saints v. Amos.\89\
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\85\ See Corporation of the Presiding Bishop of the Church of Jesus
Christ of Latter-day Saints v. Amos, 483 U.S. 327, 337 n.15 (1987)
(``Undoubtedly, [the complainant's] freedom of choice in religious
matters was impinged upon, but it was the Church .., and not the
Government, who put him to the choice of changing his religious
practices or losing his job.'').
\86\ Title VII exempts ``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.'' 42 U.S.C. Sec. 2000e-1(a).
\87\ The original section 702 exemption, as enacted in 1964, read,
in pertinent part: ``This title shall not apply to . . . a religious
corporation, association, 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, or society of its
religious activities or to an educational institution with respect to
the employment of individuals to perform work connected with the
educational activities of such institution.'' Pub. L. No. 88-352, 78
Stat. 255, 42 U.S.C. Sec. 2000e-1 (1964).
\88\ See Pub. L. No. 92-261, 86 Stat. 103 (1972) (amending 42
U.S.C. 2000e (1964)).
\89\ 483 U.S. 327 (1987). The section 702 exemption for religious
organizations in title VII should not be confused with the so-called
``ministerial exception,'' which is a legal doctrine developed by the
courts, not Congress. The Free Exercise Clause, as interpreted by the
courts, exempts hiring of clergy from title VII and other similar
statutes and, as a consequence, precludes civil courts from
adjudicating a broader range of employment discrimination suits by
ministers against the church or religious institution employing them.
See, e.g., Equal Employment Opportunity Commission v. Catholic
University of America, 83 F.3d 455, 461 (D.C.Cir. 1996). However,
persons are not covered by the so-called ``ministerial exception''
unless they perform ministerial functions. See id. at 464; see also
EEOC v. Southwestern Baptist Theological Seminary, 651 F.2d 277, 283
(5th Cir.1981) (for purposes of exception, ``ministers'' includes non-
ordained faculty at Baptist seminary where no course has ``a strictly
secular purpose ''). For example, in Weissman v. Congregation Shaare
Emeth, 38 F.3d 1038 (8th Cir.1994), the court found that the plaintiff
was able to bring an age discrimination action against his temple
without violating the First Amendment because he ``was responsible for
logistical support of activities including supervision of
administrative, clerical, building maintenance, and custodial
personnel. He also managed property and equipment and maintained
financial records. He was not a member of the clergy and played no role
in decisions relating to spiritual matters.'' Id. at 1040. See also
EEOC v. Roman Catholic Diocese of Raleigh, 213 F.3d 795, 801 (4th Cir.
2000) (``Where no spiritual function is involved, the First Amendment
does not stay the application of a generally applicable law such as
title VII to the religious employer unless Congress so provides.'');
Geary v. Visitation of the Blessed Virgin Mary Parish School, 7 F.3d
324, at 331 (3d Cir. 1993) (lay teacher in elementary parochial school
not covered by ministerial exemption); DeMarco v. Holy Cross High
School, 4 F.3d 166, 171-72 (2d.Cir. 1993) (lay math teacher not covered
by ministerial exemption). Consequently, volunteers and other personnel
at faith-based organizations performing secular, clerical, custodial,
or administrative functions would not be covered by the ministerial
exception.
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Section 702(a) is not waived or forfeited when a religious
organization receives Federal funding. When it enacted title
VII in 1964, Congress was aware that religious institutions of
higher education eligible for exemption in section 703(e)(2) of
title VII were receiving funds under Federal programs in the
form of grants and student aid. Under the GI Bill, established
in 1944, military veterans were able to attend the college or
university of their choice--public or private, sectarian or
non-sectarian--and the tuition costs were either offset or
covered in full through a voucher payment sent to the selected
school.\90\ When the title VII exemption for religious
organizations allowing their hiring to be based on religion was
expanded to include even non-ministerial positions in 1972,
``Pell'' grants for students enrolling in undergraduate
studies, including studies at religiously affiliated colleges,
were under active discussion and became law that same year.\91\
Not only does no provision in Sec. 702(a) state that its
exemption of nonprofit private religious organizations from
title VII's prohibition on discrimination in employment is
forfeited when a faith-based organization receives a Federal
grant, but the Federal circuits that have faced the issue have
also held that the protections of Sec. 702(a) cannot be
waived.\92\ Further, private organizations, including faith-
based organizations, do not become ``state actors'' and thereby
lose the status they enjoy as private organizations simply
because they receive Government funds.\93\ This means that the
Sec. 702(a) exemption does not violate any nondiscrimination
norms in the Constitution.
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\90\ See Servicemen's Readjustment Act of 1944, Pub. L. No. 78-346,
58 Stat. 284, 288-89 (1944) (``[A qualifying veteran] shall be eligible
for and entitled to such course of education or training as he may
elect, and at any approved educational or training institution at which
he chooses to enroll . . . ''). The current program provides for
payment to be made to the eligible serviceman directly. See 38 U.S.C.
Sec. 3014.
\91\ Pell Grants were established by the Education Amendments of
1972, 20 U.S.C. Sec. 1070, for the purpose of subsidizing tuition,
fees, and certain costs of attendance for people pursuing an
undergraduate degree.
\92\ See Hill v. Baptist Memorial Health Care Corp., 215 F.3d 618,
625 (6th Cir. 2000) (``[T]he statutory exemptions from religious
discrimination claims under title VII cannot be waived . . . The
exemptions reflect a decision by Congress that religious organizations
have a constitutional right to be free from Government
intervention.''); Little v. Wuerl, 929 F.2d 944, 951 (3d Cir. 1991)
(holding argument that religious organization can waive title VII
exemption ``incorrectly views [the exemption] as a privilege or
interest granted to those organizations. Instead, those exemptions
reflect a decision by Congress that the Government interest in
eliminating religious discrimination by religious organizations is
outweighed by the rights of those organizations to be free from
Government intervention.''); Siegel v. Truett-McConnell College, 13 F.
Supp.2d 1335, 1343-45 (N.D. Ga. 1994), aff'd, 73 F.3d 1108 (11th Cir.
1995) (table) (dismissing religious discrimination claim filed by
faculty member against religious college because college was exempt
from title VII and the receipt of substantial Government funding did
not bring about a waiver of the exemption or violate the Establishment
Clause).
\93\ See Rendell-Baker v. Kohn, 457 U.S. 830 (1982) (holding that
nonprofit, privately operated school's receipt of public funds did not
make its discharge decisions ``state actions'' subject to suit under
Federal statute authorizing suits for deprivations of constitutional
rights, notwithstanding that virtually all of school's income was
derived from Government funding and that even though the private entity
performed a function which served public such did not make its acts
``state action ''); Blum v. Yaretsky, 457 U.S. 991 (1982) (holding that
even though the State subsidized the cost of private nursing home
facilities, paid the expenses of the patients, and licensed the
facilities, the action of the nursing homes is not thereby converted
into ``state action.'').
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Nor is staffing on a religious basis invidious
discrimination based on an immutable trait, or for a purpose
other than preserving the religious character of an
organization. Indeed, a religious organization favoring the
employment of those of like-minded faith is comparable to an
environmental organization favoring employees devoted to
environmentalism or a teacher's union hiring only those opposed
to school voucher initiatives.
Indeed, prohibiting religious organizations from
maintaining their religious character through hiring practices
would endanger Federal funding for child services and
education. One survey found that 51 percent of nonprofit
organizations delivering child services were religiously
affiliated, and of those 82 percent received public funds. A
majority of these religiously affiliated nonprofit
organizations received over 40 percent of their budgets from
Government sources. The survey also found that 70 percent of
nonprofit colleges and universities were religiously
affiliated, and of those 97 percent received public funds.\94\
The same survey found that 44 percent of the religiously
affiliated nonprofit organizations delivering child services
only hired staff who agreed with their religious orientation,
or gave preference to them, and that 56 percent of the
religiously affiliated nonprofit colleges and universities only
hired staff who agreed with their religious orientation, or
gave preference to them.\95\ In sum, roughly half of the
religiously affiliated child care services and colleges and
universities surveyed receive large amounts of public funds and
maintain their religious character through hiring practices. A
rule prohibiting Government funds from finding their way to
religious organizations that make staffing decisions based on
religion would pull public funding from these child care
services and colleges and universities.\96\
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\94\ See Stephen V. Monsma, When Sacred and Secular Mix: Religious
Nonprofit Organizations and Public Money (Rowman & Littlefield
Publishers, Inc. 1996) at 68, Table 3.
\95\ See id. at 74-75, Tables 6 and 7.
\96\ Religiously motivated schools often consider religion in their
hiring practices and remain viable because their students receive
Federal funds. Students may use Federal veterans' benefits, Federal
Pell Grants, and other Federal educational grants and loans at any
accredited institution of higher learning, including religious schools
and seminaries that discriminate in hiring faculty and staff based on
religion.
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The Supreme Court has repeatedly held that the
Establishment Clause is not violated when Government refrains
from imposing a burden on religion, even though that same
burden is imposed on the nonreligious who are otherwise
similarly situated. In Corporation of the Presiding Bishop v.
Amos,\97\ the Supreme Court upheld an exemption permitting
religious organizations to discriminate on a religious basis in
matters concerning employment. Finding that the exemption did
not violate the Establishment Clause, the Supreme Court has
made clear that ``it is a permissible legislative purpose to
alleviate significant governmental interference with the
ability of religious organizations to define and carry out
their religious missions.'' \98\ Justice Brennan, in his
concurring opinion in Amos, recognized that many religious
organizations and associations engage in extensive social
welfare and charitable activities, such as operating soup
kitchens and day care centers or providing aid to the poor and
the homeless. Even where the content of such activities is
nonreligious, in the sense that it does not include sectarian
teaching, proselytizing, prayer or ritual, Justice Brennan
recognized that the religious organization's performance of
such functions is likely to be ``infused with a religious
purpose.'' \99\ He also recognized that churches and other
religious entities ``often regard the provision of such
services as a means of fulfilling religious duty and of
providing an example of the way of life a church seeks to
foster.'' \100\ Consequently, Justice Brennan concluded that
the ``substantial potential for chilling religious activity
makes inappropriate a case-by-case determination of the
character of a nonprofit organization, and justifies a
categorical exemption for nonprofit activities ... While not
every nonprofit activity may be operated for religious
purposes, the likelihood that many are makes a categorical rule
a suitable means to avoid chilling the exercise of religion.''
\101\
---------------------------------------------------------------------------
\97\ 483 U.S. 327 (1987).
\98\ Id. at 335.
\99\ Id. at 342 (Brennan, J., concurring).
\100\ Id. at 344.
\101\ Id. at 345.
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A religious organization may have good reason for
preferring that individuals similarly committed to its
religiously motivated mission operate such secular programs,
for such collective activity can be ``a means by which a
religious community defines itself.'' \102\ Indeed, such
collective activity not only can advance the organization's own
religious objectives, but also can further the religious
mission of the individuals that constitute the religious
community:
---------------------------------------------------------------------------
\102\ Id. at 342.
For many individuals, religious activity derives
meaning in large measure from participation in a larger
religious community. Such a community represents an
ongoing tradition of shared beliefs, an organic entity
not reducible to a mere aggregation of
individuals.\103\
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\103\ Id.
Accordingly, the selection of coreligionists in particular
social service programs will ordinarily advance a religious
organization's religious mission, facilitate the religiously
motivated calling and conduct of the individuals who are the
constituents of that organization, and fortify the
organization's religious tradition. Where an organization makes
such a showing, the title VII prohibition on religious
discrimination would impose ``significant governmental
interference'' with the ability of that organization ``to
define and carry out [its] religious mission[],'' \104\ even as
applied to employees who are engaged in work that is secular in
content. Where that is the case, the section 702(a) exemption
would be a permissible religious accommodation that
``alleviat[es] special burdens.'' \105\ The title VII
exemption, as applied to employees of faith-based organizations
in programs that are direct recipients of Government funding,
is constitutionally sound.
---------------------------------------------------------------------------
\104\ Id., at 335.
\105\ Board of Education of Kiryas Joel Village School District v.
Grumet, 512 U.S. 687, 705 (1994).
---------------------------------------------------------------------------
When the Court permits a legislature to exempt religion
from regulatory burdens, it enables private religious choice.
To establish a religion connotes that a Government must take
some affirmative step to achieve the prohibited result. On the
other hand, for Government to passively leave religion where it
found it cannot be an act establishing a religion. Pointing out
that it had previously upheld laws that helped religious groups
advance their purposes, the Supreme Court explained, ``A law is
not unconstitutional simply because it allows churches to
advance religion, which is their very purpose ... [T]he Court
... has never indicated that statutes that give special
consideration to religious groups are per se invalid.'' \106\
In other words, the state does not support or establish
religion by leaving it alone.\107\
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\106\ Corporation of the Presiding Bishop of the Church of Jesus
Christ of Latter-day Saints v. Amos, 483 U.S. 327, 338 (1987).
\107\ See Walz v. Tax Commission, 397 U.S. 664, 673 (1970) (``We
cannot read [a statute exempting religious organizations from taxes] as
attempting to establish religion; it is simply sparing the exercise of
religion from the burden of property taxation levied on private profit
institutions.'').
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Charitable choice principles simply allow religious groups
to retain their religious character while allowing them to
compete for more social service funds with which to help people
in need. H.R. 7 preserves religious organizations' exemption
from the religion nondiscrimination provisions of title VII,
and it also makes clear that religious organizations retain
their duty to follow the title VII nondiscrimination provisions
regarding race, color, sex, and national origin.\108\
---------------------------------------------------------------------------
\108\ Title VII applies to employers with ``fifteen or more
employees for each working day in each of twenty or more calendar weeks
in the current or proceeding calendar year.'' 42 U.S.C. Sec. 2000e(b).
Under title VII, employees of certain small organizations are not
protected by title VII, and their protections against discrimination
are found in state or local antidiscrimination statutes, or section
1981. See 42 U.S.C. Sec. 1981 (``(a) Statement of equal rights. All
persons within the jurisdiction of the United States shall have the
same right in every State and Territory to make and enforce contracts,
to sue, be parties, give evidence, and to the full and equal benefit of
all laws and proceedings for the security of persons and property as is
enjoyed by white citizens, and shall be subject to like punishment,
pains, penalties, taxes, licenses, and exactions of every kind, and to
no other. (b) `Make and enforce contracts' defined. For purposes of
this section, the term `make and enforce contracts' includes the
making, performance, modification, and termination of contracts, and
the enjoyment of all benefits, privileges, terms, and conditions of the
contractual relationship. (c) Protection against impairment. The rights
protected by this section are protected against impairment by
nongovernmental discrimination and impairment under color of State
law.''). INSERT E
---------------------------------------------------------------------------
Because H.R. 7 expands charitable choice principles to
cover many new Federal programs, one uniform rule should apply
to all programs and allow religious organizations to retain
their autonomy over the definition, development, practice, and
expression of their religious beliefs, including through hiring
staff. This is so even when State or local laws provide
otherwise, but only when Federal funds are used and only when
such religious beliefs are sincerely held. See subsections
(d)(1) and (k) of the Charitable Choice Act of 2001; see also
United States v. Ballard, 322 U.S. 78 (1944) (while truth of
religious beliefs may not be subjected to examination by trier
of fact, the sincerity of religious claimant may to tested).
This statutory right is enforceable, if need be, by the
Compliance subsection. Subsection (n) gives a faith-based
organization a private right of action for injunctive relief.
This statutory right is very narrow in scope, and the
experience to date is encouraging. Such a right has been
present in existing charitable choice laws for five years and
there are no known or reported instances in which faith-based
organizations have asserted this narrow statutory right.
Wherever federal funds go, this statutory right of religious
organizations to staff on a religious basis should follow, as
should, of course, their duty of nondiscrimination under
federal civil rights laws, including those applicable duties to
which they are the subject under title VII and the civil rights
statutes listed in subsection (f). And, of course, subsection
(h) does not permit religious discrimination against social
service beneficiaries.
There is considerable benefit in having one Federal rule
for all Federal funds nationwide. However, where State or local
governments do not use Federal funds, or where they segregate
their own funds from Federal funds, these governments are not
subject to the provisions of H.R. 7. Accordingly, they may
apply their own civil rights laws to their own State or local
funds.
THERE IS NO CONSTITUTIONAL REQUIREMENT THAT RELIGIOUS ORGANIZATIONS
FORM SEPARATE 501(C)(3) ORGANIZATIONS IN ORDER TO COMPETE FOR AND
ADMINISTER FUNDS UNDER H.R. 7
There are also those who have expressed the notion that
religious organizations incorporated under Sec. 501(c)(3) of
the Internal Revenue Code cannot be intensely or significantly
religious, and hence should be able to receive Federal funds,
while a non-501(c)(3) religious organization should not be able
to do so. The notion seems to be premised on an incorrect
assumption that such an organization, being separate from the
``pervasively sectarian'' parent, must be secular and thus
constitutionally authorized to accept Government funds.
However, the constitution does not bar ``pervasively
sectarian'' organizations from accepting Government funds,
under appropriate conditions, as the Supreme Court has recently
emphasized. There is also nothing inherent in 501(c)(3) status
that requires an organization not to be pervasively sectarian,
and intensely or significantly religious organizations,
including churches, can be 501(c)(3) organizations if they so
choose. Under Sec. 508(c)(1)(A), ``churches'' and ``their
integrated auxiliaries'' may take advantage of tax-exempt
status without filing an application for tax-exemption under
Sec. 501(c)(3), but many elect to do so anyway in order to
create a separately funded organization. In any case, nothing
about Sec. 501(c)(3) status means the organization has to, for
example, take down religious symbols or refrain from staffing
on a religious basis, just because it receives a Federal grant.
Section 501(c)(3) only imposes two restrictions on nonprofit,
tax-exempt public charities, including religious social service
ministries: first, a blanket prohibition on the organization's
involvement in political campaigns; and second, a requirement
that no substantial part of its activities be devoted to
lobbying. See 26 U.S.C. Sec. 501(c)(3). In sum, the provisions
of Sec. 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 a 501(c)(3)
organization's involvement in religion. Charitable choice
principles, not the provisions of Sec. 501(c)(3), define what a
religious organization can and cannot do in order to lawfully
compete for and administer funds under a Federal social service
program, and there is no constitutional reason why a religious
organization should not be able to use its existing rooms and
buildings for training centers and office space. To impose such
a requirement of separate incorporation by a religious
organization seeking to take part in a Federal social service
program would impose an unnecessary barrier to entry on the
smallest faith-based organizations when H.R. 7 seeks to remove
such unnecessary barriers. Under subsection (i)(2)(A) of title
II of H.R. 7, a religious organization receiving funds directly
through a grant or cooperative agreement need only create a
separate account to receive the Government funds out of which
charitable choice programs draw, rather than form a separate
Sec. 501(c)(3) organization. This is done, in part, to limit
the scope of audits to funds from Government sources and
thereby shield other accounts from Government monitoring.
H.R. 7 ALSO INCLUDES PROVISIONS TO ENCOURAGE BUSINESSES TO MAKE IN-KIND
CHARITABLE DONATIONS BY PROTECTING THEM FROM LIABILITY, WITH CERTAIN
EXCEPTIONS FOR GROSS NEGLIGENCE AND INTENTIONAL MISCONDUCT, WHEN
DONATED ITEMS CAUSE INJURY OR DEATH
Section 104 of title I of H.R. 7 includes liability reform
provisions covering charitable in-kind donations by businesses.
Section 104 is intended to encourage businesses to make in-kind
charitable contributions of equipment, motor vehicles, and
aircraft by protecting them from liability, under Federal and
state law with certain exceptions for gross negligence and
intentional misconduct, in the event the donated items cause
injury. Subsection (b) of section 104 provides that, subject to
exceptions in subsection (c), a business entity shall not be
subject to civil liability relating to any injury or death that
results from the use of equipment donated by that business
entity to a nonprofit organization. Businesses donating
facilities to nonprofit organizations shall not be subject to
civil liability relating to any injury or death occurring at
the facility if the use occurs outside of the scope of business
of the business entity, such injury or death occurs during a
period that such facility is used by the nonprofit
organization, and the business entity authorized the use of
such facility by the nonprofit organization. Businesses shall
not be subject to civil liability relating to any injury or
death occurring as a result of the operation of aircraft or a
motor vehicle of a business entity loaned to a nonprofit
organization for use outside the scope of business of the
business entity, if such injury or death occurs during a period
that such motor vehicle or aircraft is used by a nonprofit
organization, and the business entity authorized the use by the
nonprofit organization of motor vehicle or aircraft that
resulted in the injury or death.
Subsection (c) provides that the protections of subsection
(b) shall not apply to an injury or death that results from an
act or omission of a business entity that constitutes gross
negligence or intentional misconduct.
Subsection (d) provides that, subject to subsection (e),
the laws of any State are preempted to the extent that such
laws are inconsistent with this title, except that this title
shall not preempt any State law that provides additional
protection for a business entity for an injury or death
described in a paragraph of subsection (b) with respect to
which the conditions specified in such paragraph apply.
Subsection (d) also provides that nothing in this title shall
be construed to supersede any Federal or State health or safety
law. Subsection (e) provides that a provision of this title
shall not apply to any civil action in a State court against a
business entity in which all parties are citizens of the State
if such State enacts a statute citing the authority of this
section, declaring the election of such State that such
provision shall not apply to such civil action in the State,
and containing no other provisions.
SUMMARY
While the First Amendment to the Constitution provides that
the Government shall not ``establish'' religion, or any
particular religion by directing governmental support to a
particular religion or to adherents of religion to the
exclusion of adherents to no religion, 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. These ``charitable choice'' principles, part of H.R. 7,
allow for the public funding of faith-based organizations with
demonstrated abilities to meet basic needs, and they allow such
organizations to choose their staff, board members, and
methods, thus preserving their religious character. These
principles also protect the rights of conscience of their
clients by prohibiting the use of Government funds for
sectarian instruction, worship, or proselytization and by
ensuring that alternatives, not objectionable for religious
reasons are available.
Existing charitable choice programs have benefitted
thousands of persons in need without raising significant
constitutional concerns in their implementation. An expansion
of such principles to cover even more Federal programs likewise
raise no serious constitutional concerns, while preserving
citizens' rights to freely exercise their religion without
being dismissed out-of-hand in their attempts to take part in
cooperative efforts with the Federal Government designed to
reduce poverty and fulfill basic human needs.
Hearings
The Committee's Subcommittee on the Constitution held 2
days of oversight hearings on charitable choice, the first of
which was held on April 24, 2001. That hearing explored how
States and localities have successfully implemented existing
``charitable choice'' provisions, governing certain Federal
programs, and benefitted those in need. Testimony was received
from the following witnesses: Dr. Amy Sherman, Senior Fellow,
Welfare Policy Center, Hudson Institute; Reverend Donna
Lawrence Jones, Cookman United Methodist Church, Philadelphia,
PA; Charles Clingman, Executive Director, Jireh Development
Corporation, Cincinnati, OH; and Reverend J. Brent Walker,
Executive Director, Baptist Joint Committee on Public Affairs.
The second oversight hearing was held on June 7, 2001. That
hearing focused on the constitutional role of faith-based
organizations in competing for Federal social service funds.
Testimony was received from the following witnesses: Carl
Esbeck, Senior Counsel to the Deputy Attorney General, United
States Department of Justice; Douglas Laycock, Associate Dean
for Research and Alice McKean Young Regents Chair in Law, The
University of Texas School of Law; David N. Saperstein, Adjunct
Professor of Law; Director, Religious Action, Center of Reform
Judaism, Georgetown University Law Center; and Ira C. Lupu,
Louis Harkey Mayo Research Professor of Law, The George
Washington University School of Law.
Committee Consideration
On June 28, 2001, the Committee met in open session and
ordered favorably reported the bill, H.R. 7, with amendment, by
a recorded vote of 20 to 5, a quorum being present.
Vote of the Committee
1. An amendment was offered by Mr. Scott (for himself, Mr.
Conyers, Mr. Nadler, Mr. Frank, Ms. Jackson Lee, Ms. Waters,
Ms. Balwin, and Mr. Watt) to strike from the amendment offered
by Mr. Sensenbrenner its provisions preserving religious
organizations' exemption from the religion nondiscrimination
provisions of title VII of the Civil Rights Act of 1964. The
amendment was defeated by rollcall vote of 11 to 19.
ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................ X
Mr. Gekas....................................................... X
Mr. Coble....................................................... X
Mr. Smith (Texas)...............................................
Mr. Gallegly.................................................... X
Mr. Goodlatte...................................................
Mr. Chabot...................................................... X
Mr. Barr........................................................ X
Mr. Jenkins..................................................... X
Mr. Hutchinson.................................................. X
Mr. Cannon...................................................... X
Mr. Graham...................................................... X
Mr. Bachus...................................................... X
Mr. Scarborough................................................. X
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Ms. Hart........................................................ X
Mr. Flake....................................................... X
Mr. Conyers..................................................... X
Mr. Frank....................................................... X
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee.................................................
Ms. Waters...................................................... X
Mr. Meehan......................................................
Mr. Delahunt....................................................
Mr. Wexler...................................................... X
Ms. Baldwin..................................................... X
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 11 19
----------------------------------------------------------------------------------------------------------------
2. An amendment was offered by Mr. Watt to strike language
in the amendment offered by Mr. Sensenbrenner overriding any
provisions in programs covered under subsection (c)(4) of the
Charitable Choice Act of 2001 that are inconsistent with or
would diminish the exercise of an organization's autonomy
recognized in section 702 of the Civil Rights Act of 1964 or
the Charitable Choice Act of 2001, and to add language to the
end of subsection (e) of the Charitable Choice Act of 2001. The
amendment was modified to omit its striking of language in the
amendment of Mr. Sensenbrenner and to add the following
language at the end of subsection (e): ``Nothing in this
section alters the duty of a religious organization to comply
with the nondiscrimination provisions of title VII of the Civil
Rights Act of 1964 in the use of funds from programs described
in subsection (c)(4).'' As so modified, the amendment was
agreed to by unanimous consent.
3. An amendment was offered by Mr. Nadler (for himself, Mr.
Conyers, and Mr. Scott) that would perfect the amendment
offered by Mr. Sensenbrenner a subsection providing that a
party alleging that the rights of the party under subsection
(f), (g), or (i) of the amendment offered by Mr. Sensenbrenner
have been violated may bring a civil action seeking any form of
legal or equitable relief, including a writ of mandamus,
injunctive relief, or monetary damages, in a State court of
general jurisdiction or in a District Court of the United
States, against a religious organization, official, or
Government agency, and that in any action or proceeding to
enforce the foregoing rights, the court may allow a prevailing
plaintiff reasonable attorneys' fees as part of the costs and
may include expert fees as part of the attorneys' fees. The
amendment was defeated by voice vote.
4. An amendment was offered by Mr. Nadler that would strike
subsection (h) of the Charitable Choice Act of 2001 contained
in the amendment offered by Mr. Sensenbrenner and replace it
with a a new subsection (h) providing that a religious
organization shall be eligible for assistance under a program
described in subsection (c)(4) only through an entity
incorporated separately from its pervasively sectarian parent
or affiliate under section 501(c)(3) of the Internal Revenue
Code of 1986. The amendment was defeated by voice vote.
5. An amendment was offered by Mr. Nadler (for himself, Mr.
Conyers, Mr. Frank, Ms. Jackson Lee and Mr. Watt) that would
have added language to the amendment offered by Mr.
Sensenbrenner prohibiting religious organization receiving
funds under programs covered by subsection (c)(4) from engaging
any beneficiaries of such programs in religious worship,
instruction, or proselytization while they were receiving
assistance under a covered program. The amendment was defeated
by rollcall vote of 7 to 22.
ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................ X
Mr. Gekas....................................................... X
Mr. Coble....................................................... X
Mr. Smith (Texas)...............................................
Mr. Gallegly.................................................... X
Mr. Goodlatte...................................................
Mr. Chabot...................................................... X
Mr. Barr........................................................ X
Mr. Jenkins..................................................... X
Mr. Hutchinson.................................................. X
Mr. Cannon...................................................... X
Mr. Graham...................................................... X
Mr. Bachus...................................................... X
Mr. Scarborough................................................. X
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Ms. Hart........................................................ X
Mr. Flake....................................................... X
Mr. Conyers.....................................................
Mr. Frank....................................................... X
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren.....................................................
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Meehan......................................................
Mr. Delahunt....................................................
Mr. Wexler...................................................... X
Ms. Baldwin..................................................... X
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 7 22
----------------------------------------------------------------------------------------------------------------
6. An amendment was offered by Mr. Scott (for himself and
Ms. Waters) that would have provided that nothing in the
Charitable Choice Act of 2001 in the amendment offered by Mr.
Sensenbrenner shall affect any programs under the Elementary
and Secondary Education Act of 1965. The amendment was defeated
by a rollcall vote of 10 to 17.
ROLLCALL NO. 3
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................ X
Mr. Gekas....................................................... X
Mr. Coble....................................................... X
Mr. Smith (Texas)...............................................
Mr. Gallegly.................................................... X
Mr. Goodlatte...................................................
Mr. Chabot...................................................... X
Mr. Barr........................................................ X
Mr. Jenkins..................................................... X
Mr. Hutchinson.................................................. X
Mr. Cannon...................................................... X
Mr. Graham...................................................... X
Mr. Bachus...................................................... X
Mr. Scarborough.................................................
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................
Ms. Hart........................................................ X
Mr. Flake....................................................... X
Mr. Conyers.....................................................
Mr. Frank....................................................... X
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Meehan......................................................
Mr. Delahunt....................................................
Mr. Wexler......................................................
Ms. Baldwin..................................................... X
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 10 17
----------------------------------------------------------------------------------------------------------------
7. An amendment was offered by Ms. Lofgren (for herself and
Mr. Schiff) that would have striken section 104 of title I of
H.R. 7 in the amendment offered by Mr. Sensenbrenner, which
extends liability protection to businesses making in-kind
donations to charitable organizations. The amendment was
defeated by a rollcall vote of 7 to 13.
ROLLCALL NO. 4
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................ X
Mr. Gekas....................................................... X
Mr. Coble....................................................... X
Mr. Smith (Texas)...............................................
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Chabot......................................................
Mr. Barr........................................................ X
Mr. Jenkins.....................................................
Mr. Hutchinson.................................................. X
Mr. Cannon......................................................
Mr. Graham...................................................... X
Mr. Bachus......................................................
Mr. Scarborough.................................................
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................
Ms. Hart........................................................ X
Mr. Flake.......................................................
Mr. Conyers.....................................................
Mr. Frank....................................................... X
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters......................................................
Mr. Meehan......................................................
Mr. Delahunt....................................................
Mr. Wexler......................................................
Ms. Baldwin.....................................................
Mr. Weiner......................................................
Mr. Schiff...................................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 7 13
----------------------------------------------------------------------------------------------------------------
8. An amendment was offered by Mr. Frank (for himself and
Ms. Baldwin) that would have added language to subsection (g)
of the Charitable Choice Act of 2001, in the amendment offered
by Mr. Sensenbrenner, prohibiting a religious organization
receiving indirect forms of assistance from discriminating, in
carrying out a covered program, against an individual on the
basis of a religious belief. The amendment was defeated by a
rollcall vote of 7 to 15.
ROLLCALL NO. 5
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................ X
Mr. Gekas....................................................... X
Mr. Coble....................................................... X
Mr. Smith (Texas)...............................................
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Chabot...................................................... X
Mr. Barr........................................................ X
Mr. Jenkins..................................................... X
Mr. Hutchinson..................................................
Mr. Cannon...................................................... X
Mr. Graham...................................................... X
Mr. Bachus......................................................
Mr. Scarborough.................................................
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................
Ms. Hart........................................................ X
Mr. Flake.......................................................
Mr. Conyers.....................................................
Mr. Frank....................................................... X
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler......................................................
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Meehan......................................................
Mr. Delahunt....................................................
Mr. Wexler......................................................
Ms. Baldwin.....................................................
Mr. Weiner......................................................
Mr. Schiff...................................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 7 15
----------------------------------------------------------------------------------------------------------------
9. An amendment was offered by Mr. Frank (for himself and
Mr. Scott) that would strike subsection (e)(2) of the
Charitable Choice Act of 2001 in the amendment offered by Mr.
Sensenbrenner and insert a new subsection (f) listing the same
anti-discrimination statutes listed in subsection (e)(2) and
preceding them with the language ``nothing in section 1994A
shall alter the duty of a religious organization receiving
assistance or providing services under any program described in
subsection (c)(4) to comply with the nondiscrimination
provisions in'' the listed statutes. The amendment was agreed
to by voice vote.
10. An amendment was offered by Ms. Jackson Lee (for
herself and Ms. Waters) that would strike from the Charitable
Choice Act of 2001, in the amendment offered by Mr.
Sensenbrenner, its provisions protecting the rights of a
religious organization that provides assistance under a program
described in subsection (c)(4) to retain its autonomy,
including its control over the definition, development,
practice, and expression of its religious beliefs, from State
and local governments. The amendment would also have allowed
State and local governments to require a religious
organization, in order to be eligible to provide assistance
under a program described in subsection (c)(4), to alter its
form of internal governance or provisions of its charter
documents, or to remove religious art, icons, scripture or
other symbols, or to change its name, because such symbols or
name are of a religious character. The amendment also would
have striken subsection (j) of the Charitable Choice Act of
2001. The amendment was defeated by a rollcall vote of 7 to 19.
ROLLCALL NO. 6
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................ X
Mr. Gekas....................................................... X
Mr. Coble....................................................... X
Mr. Smith (Texas)...............................................
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Chabot...................................................... X
Mr. Barr........................................................ X
Mr. Jenkins..................................................... X
Mr. Hutchinson.................................................. X
Mr. Cannon...................................................... X
Mr. Graham...................................................... X
Mr. Bachus...................................................... X
Mr. Scarborough.................................................
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Ms. Hart........................................................ X
Mr. Flake....................................................... X
Mr. Conyers.....................................................
Mr. Frank....................................................... X
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Meehan......................................................
Mr. Delahunt....................................................
Mr. Wexler......................................................
Ms. Baldwin.....................................................
Mr. Weiner......................................................
Mr. Schiff......................................................
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 7 19
----------------------------------------------------------------------------------------------------------------
11. An amendment was offered by Mr. Watt that would have
inserted into the subsection of the Charitable Choice Act of
2001 titled ``Effect on Other Laws,'' in the amendment offered
by Mr. Sensenbrenner, a reference to the Fair Housing Act. The
amendment was withdrawn.
12. An amendment was offered by Mr. Nadler (for himself and
Mr. Frank that would have striken from subsection (f)(1)(A) of
the Charitable Choice Act of 2001, in the amendment offered by
Mr. Sensenbrenner, the phrase ``is an alternative that is
accessible to the individual and unobjectionable to the
individual on religious grounds,'' and replaced it with ``is an
alternative, including a nonreligious alternative, that is
accessible and not objectionable to the individual.'' The
amendment also would have added the following language at the
end of that subsection: ``section 1994A of this title shall not
apply with respect to assistance provided under a program
described in subsection (c)(4) during a fiscal year by an
organization if the requirement of paragraph (1) is not met
with respect to that assistance.'' The amendment was defeated
by voice vote.
13. An amendment was offered by Mr. Scott that would have
replaced the phrase ``an alternative that is accessible'' in
subsection (f)(1)(A) of the Charitable Choice Act of 2001 in
the amendment offered by Mr. Sensenbrenner, with the phrase
``an alternative that is at least as accessible.'' The
amendment was defeated by voice vote.
14. An amendment was offered by Mr. Scott that would have
added at the end of subsection (c)(1)(A) of the Charitable
Choice Act of 2001 in the amendment offered by Mr.
Sensenbrenner the following language: ``For purposes of this
section, a religious organization is an organization which is
pervasively sectarian, and states in the application for
funding that it is a `pervasively sectarian organization.' ''
The amendment was defeated by voice vote.
15. An amendment was offered by Mr. Scott that would have
added the following language to subsection (m) of the amendment
offered by Mr. Sensenbrenner to title II of H.R. 7: ``Funding
under this section shall be based on the objective merits of
the applications submitted and shall not discriminate against
an applicant based on the religious character of the
organization.'' The amendment was defeated by a rollcall vote
of 7 to 20.
ROLLCALL NO. 7
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................ X
Mr. Gekas....................................................... X
Mr. Coble....................................................... X
Mr. Smith (Texas)...............................................
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Chabot...................................................... X
Mr. Barr........................................................ X
Mr. Jenkins..................................................... X
Mr. Hutchinson.................................................. X
Mr. Cannon...................................................... X
Mr. Graham...................................................... X
Mr. Bachus...................................................... X
Mr. Scarborough................................................. X
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Ms. Hart........................................................ X
Mr. Flake....................................................... X
Mr. Conyers..................................................... X
Mr. Frank.......................................................
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Meehan......................................................
Mr. Delahunt....................................................
Mr. Wexler......................................................
Ms. Baldwin.....................................................
Mr. Weiner......................................................
Mr. Schiff......................................................
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 7 20
----------------------------------------------------------------------------------------------------------------
16. An amendment was offered by Mr. Scott to the amendment
offered by Mr. Sensenbrenner relating to training and technical
assistance for small nongovernmental organizations that would
have struck language referring to the Office of Justice
Programs. The amendment also would have increased from $25
million to $50 million the amounts the Attorney General was
authorized to spend to provide training and technical
assistance regarding procedures relating to potential
application and participation in programs identified in
subsection (c)(4), to small nongovernmental organizations,
including religious organizations. The amendment also provided
that such assistance shall include assistance in creating a
501(c)(3) organization, grant writing workshops, informational
assistance regarding accounting, legal, and tax issues,
informational assistance regarding how to comply with Federal
nondiscrimination provisions. The amendment also provided that,
in providing such assistance, priority shall be given to small
nongovernmental organizations serving rural and urban
communities. By unanimous consent, the amendment was modified
to omit the striking of language and to replace the phrase
``Such assistance shall include'' with ``Such assistance may
include.'' The amendment, as modified, was agreed to.
17. An amendment was offered by Mr. Scott in the amendment
offered by Mr. Sensenbrenner that would have added at the end
of subsection (c)(3) the following language: ``Notwithstanding
the provisions in this paragraph, title VI of the Civil Rights
Act of 1964 (42 U.S.C. 2000d et seq.) shall apply to
organizations receiving direct assistance funded under any
program described in subsection (c)(4).'' The amendment was
agreed to by voice vote.
18. Mr. Sensenbrenner offered an amendment that would
replace existing language in the employment practices
provisions of H.R. 7 preserving religious organizations'
current exemption from the religious nondiscrimination
provisions of title VII with the same language used in the 1996
Welfare Reform Act, with an additional clause making clear that
contrary provisions in the Federal programs covered by H.R. 7
have no force and effect. The amendment also makes clear that,
when a beneficiary has an objection to the religious nature of
a provider, an alternative provider is required that is
unobjectionable to the beneficiary on religious grounds, but
that the alternative provider need not be nonreligious. The
amendment also permits review of the performance of Federal
programs funded through religious organizations and not just
its fiscal aspects; requires self-audits by religious
organizations; makes a clearer statement that if a religious
organization offers sectarian instruction, worship, or
proselytization, it shall be voluntary for the individuals
receiving services and offered separate from the program funded
under this subpart; limits parties alleging that their rights
under this section have been violated to injunctive relief; and
authorizes the Attorney General to provide training and
technical assistance regarding procedures relating to potential
applications and participation in programs identified in
subsection (c)(4), to small nongovernmental organizations,
including religious organizations. The amendment offered by Mr.
Sensenbrenner, as amended, was agreed to by voice vote.
19. Final Passage. The motion to report favorably the bill
H.R. 7, as amended, was adopted. The motion was agreed to by a
rollcall vote of 20 to 5.
ROLLCALL NO. 8
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................ X
Mr. Gekas....................................................... X
Mr. Coble....................................................... X
Mr. Smith (Texas)...............................................
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Chabot...................................................... X
Mr. Barr........................................................ X
Mr. Jenkins..................................................... X
Mr. Hutchinson.................................................. X
Mr. Cannon...................................................... X
Mr. Graham...................................................... X
Mr. Bachus...................................................... X
Mr. Scarborough................................................. X
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Ms. Hart........................................................ X
Mr. Flake....................................................... X
Mr. Conyers.....................................................
Mr. Frank.......................................................
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee.................................................
Ms. Waters...................................................... X
Mr. Meehan......................................................
Mr. Delahunt....................................................
Mr. Wexler......................................................
Ms. Baldwin.....................................................
Mr. Weiner......................................................
Mr. Schiff......................................................
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 20 5
----------------------------------------------------------------------------------------------------------------
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee reports that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
Performance Goals and Objectives
Subsection (o) of title II of H.R. 7, the Charitable Choice
Act of 2001, provides that, from amounts made available to
carry out the purposes of the Office of Justice Programs, funds
are authorized to provide training and technical assistance,
directly, or through grants or other arrangements, in
procedures relating to potential application and participation
in covered programs to small nongovernmental organizations, as
determined by the Attorney General, including religious
organizations, in an amount not to exceed $50 million annually.
An amount of no less than $5,000,000 shall be reserved under
this section, and small nongovernmental organizations may apply
for these funds to be used for assistance in providing full and
equal integrated access to individuals with disabilities in
programs covered by the Charitable Choice Act of 2001.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of House Rule XIII is inapplicable because
the portion of this legislation referred to the Committee does
not provide new budgetary authority or increased tax
expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 7, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, July 11, 2001.
Hon. F. James Sensenbrenner, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 7, the Community
Solutions Act of 2001.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contacts are Lanette J.
Walker (for Federal spending), who can be reached at 226-2860,
Erin Whitaker (for revenues), who can be reached at 226-2720,
and Shelley Finlayson (for the state and local impact), who can
be reached at 225-3220.
Sincerely,
Dan L. Crippen, Director.
Enclosure
cc:
Honorable John Conyers Jr.
Ranking Member
H.R. 7--Community Solutions Act of 2001.
SUMMARY
H.R. 7 would establish certain guidelines for religious
organizations or their affiliates to receive Federal funds for
the provision of social services and would make several changes
to tax law concerning deductions for charitable contributions.
The Joint Committee on Taxation (JCT) estimates that the
revenue loss associated with this legislation would be almost
$50 billion over the 2002-2006 period and more than $120
billion over the 2002-2011 period. Because H.R. 7 would affect
revenues, pay-as-you-go procedures would apply. The bill also
would establish certain reporting requirements of the Secretary
of the Treasury and authorize the appropriation of $1 million
each year for the Secretary to comply with those requirements.
Assuming the appropriation of the specified amounts, CBO
estimates that implementing H.R. 7 would cost $5 million over
the 2001-2006 period.
Section 104 of H.R. 7 contains an intergovernmental mandate
as defined in the Unfunded Mandates Reform Act (UMRA) because
it would preempt certain state liability laws. CBO estimates
that complying with this mandate would result in no direct
costs to state governments and thus would not exceed the
threshold established in that act ($56 million in 2001,
adjusted annually for inflation). Title 2 of the bill also
would establish new requirements and prohibitions on state and
local governments as conditions of receiving Federal assistance
under numerous Federal programs. This bill contains no new
private-sector mandates as defined in UMRA.
ESTIMATED COST TO THE FEDERAL GOVERNMENT
The estimated budgetary impact of H.R. 7 is shown in the
following table. The cost of this legislation falls within
budget function 800 (general government).
BASIS OF ESTIMATE
For this estimate, CBO assumes that H.R. 7 will be enacted
by the end of fiscal year 2001 and that the authorized amounts
will be appropriated for each year.
Spending Subject to Appropriation
Title III would establish tax credits for certain financial
institutions that provide individual development accounts and
would set certain requirements for the administration of the
accounts and for the withdrawals from those accounts by
individual taxpayers. The bill would authorize the
appropriation of $1 million in each year over the 2002-2008
period for the Secretary of the Treasury to monitor the cost
and performance of the individual development account programs
and prepare an annual report to the Congress. Assuming the
appropriation of the specified amounts, CBO estimates that
implementing H.R. 7 would cost $5 million over the 2002-2006
period.
H.R. 7 would establish certain guidelines for religious
organizations or their affiliates to receive Federal funds for
the provision of social services. It also would require that
any governmental organization that contracts with a religious
organization to provide social services guarantee that eligible
individuals who object to a specific service provider on
religious grounds be directed to a different provider of
comparable services. Although in many areas the number of
providers would be sufficient to ensure that alternative
providers would be available, very small communities might find
it difficult to comply with these requirements. Although the
requirement to find an alternate provider could increase
Federal costs in some cases by requiring the Federal Government
to pay a portion of the costs of such alternate providers, CBO
has been unable to obtain data to estimate any such costs.
However, CBO does not anticipate that any resulting costs to
the Federal Government would be substantial.
Revenues
H.R. 7 would allow taxpayers who do not itemize their
deductions to deduct their charitable contributions up to the
amount of the standard deduction, and continue to allow such
taxpayers to take the standard deduction. The bill would allow
taxpayers to exclude from their gross income otherwise taxable
withdrawals from individual retirement accounts if those
withdrawals were made for certain charitable distributions. The
bill also would amend charitable contribution rules to enhance
deductions for donations of food for all taxpayers other than
certain corporations, and would limit the liability of
corporate entities for certain charitable contributions of
equipment.
H.R. 7 would establish tax credits for certain financial
institutions that provide a program for certain accounts in
which eligible individuals receive matching contributions from
those institutions (individual development account program).
The tax credit for these financial institutions would be equal
to the amount of matching contributions made under the program
plus amounts for accounts opened or maintained during the
taxable year. It would set certain requirements for the
administration of individual development accounts and for
withdrawals from those accounts by individual taxpayers.
The Joint Committee on Taxation estimates that the revenue
loss associated with this legislation would be almost $50
billion over the 2002-2006 period and more than $120 billion
over the 2002-2011 period.
PAY-AS-YOU-GO CONSIDERATIONS
The Balanced Budget and Emergency Deficit Control Act sets
up pay-as-you-go procedures for legislation affecting direct
spending or receipts. The net changes in governmental receipts
that are subject to pay-as-you-go procedures are shown in the
following table. For the purposes of enforcing pay-as-you-go
procedures, only the effects in the current year, the budget
year, and the succeeding 4 years are counted.
ESTIMATED IMPACT ON STATE, LOCAL, AND TRIBAL GOVERNMENTS
CBO has reviewed section 104 and title 2 of H.R. 7 for
intergovernmental mandates.
Mandates
Section 104 contains an intergovernmental mandate as
defined in UMRA because it would preempt inconsistent or more
stringent state liability laws that hold businesses civilly
liable for injuries or death that result from the use of
equipment, facilities, or vehicles donated or loaned to
nonprofit organizations. This preemption would be an
intergovernmental mandate as defined in UMRA, but because the
preemption is narrow and state governments would not be
required to take any action, CBO estimates complying with this
mandate would result in no direct costs. Thus, the threshold
established in UMRA ($56 million in 2001, adjusted annually for
inflation) would not be exceeded.
Other Impacts
Title 2 would establish new requirements and prohibitions
on how state and local governments receive and use Federal
funds under numerous Federal programs. Such programs include
anything related to hunger relief activities, Federal housing
under the Community Development Block Grant Program, prevention
of domestic violence under the Child Abuse Prevention and
Treatment Act, and services for the elderly under the Older
Americans Act. Specifically, title 2 would require state and
local governments to consider religious organizations on the
same basis as other organizations to provide assistance under
programs carried out using Federal funds.
The bill also would require that the appropriate government
entity notify applicants and recipients about provider options
and provide, in a timely manner, an equivalent alternative from
a nonreligious provider if a recipient objects to receiving
services from a religious provider. In addition, state and
local governments that discriminate on the basis of religion in
selecting service providers could be sued for injunctive
relief. All of those requirements are conditions of Federal
assistance, and therefore, are not mandates under UMRA.
However, those requirements could increase state and local
costs to administer numerous Federal programs. In particular,
some small communities could find it difficult or costly to
comply with the alternate provider requirements. CBO does not
have sufficient information to estimate the aggregate costs
nationwide.
ESTIMATED IMPACT ON THE PRIVATE SECTOR
This bill contains no new private-sector mandates as
defined in UMRA.
ESTIMATE PREPARED BY:
Federal Spending: Lanette J. Walker (226-2860)
Federal Revenues: Erin Whitaker (226-2720)
Impact on State, Local, and Tribal Governments: Shelley
Finlayson (225-3220)
Impact on the Private Sector: Paige Piper/Bach (226-2960)
ESTIMATE APPROVED BY:
Peter H. Fontaine
Deputy Assistant Director for Budget Analysis
G. Thomas Woodward
Assistant Director for Tax Analysis Division
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in article I, section 8, clauses 1, 3 and 18
of the Constitution.
Section-by-Section Analysis and Discussion
Section 104 of Title I--Charitable Donations Liability Reform for In-
Kind Corporate Contributions
Subsection (a)--Definitions
This subsection defines the terms aircraft, business
entity, equipment, facility, gross negligence, intentional
misconduct, motor vehicle, nonprofit organization, and State,
as used in section 104 of title I of H.R. 7.
Subsection (b)--Liability
Subsection (b) applies with respect to civil liability
under Federal and State law. Subsection (b) provides that,
subject to subsection (c), a business entity shall not be
subject to civil liability relating to any injury or death that
results from the use of equipment donated by that business
entity to a nonprofit organization. Businesses donating
facilities to nonprofit organizations shall not be subject to
civil liability relating to any injury or death occurring at
the facility if the use occurs outside of the scope of business
of the business entity, such injury or death occurs during a
period that such facility is used by the nonprofit
organization, and the business entity authorized the use of
such facility by the nonprofit organization. Businesses shall
not be subject to civil liability relating to any injury or
death occurring as a result of the operation of aircraft or a
motor vehicle of a business entity loaned to a nonprofit
organization for use outside the scope of business of the
business entity, if such injury or death occurs during a period
that such motor vehicle or aircraft is used by a nonprofit
organization, and the business entity authorized the use by the
nonprofit organization of motor vehicle or aircraft that
resulted in the injury or death.
Subsection (c)--Exceptions
Subsection (c) provides that subsection (b) shall not apply
to an injury or death that results from an act or omission of a
business entity that constitutes gross negligence or
intentional misconduct.
Subsection (d)--Superceding Provision
Subsection (d) provides that, subject to subsection (e),
this title preempts the laws of any State to the extent that
such laws are inconsistent with this title, except that this
title shall not preempt any State law that provides additional
protection for a business entity for an injury or death
described in a paragraph of subsection (b) with respect to
which the conditions specified in such paragraph apply.
Subsection (d) also provides that nothing in this title shall
be construed to supersede any Federal or State health or safety
law.
Subsection (e)--Election of State Regarding Nonapplicability
Subsection (e) provides that a provision of this title
shall not apply to any civil action in a State court against a
business entity in which all parties are citizens of the State
if such State enacts a statute citing the authority of this
section, declaring the election of such State that such
provision shall not apply to such civil action in the State,
and containing no other provisions.
Subsection (f)--Effective Date
Subsection (f) provides that this section shall apply to
injuries and deaths resulting therefrom and occurring on or
after the date of the enactment of this act.
Section 201 of Title II of H.R. 7--Expansion of Charitable Choice
Subsection (a)--Short Title
Subsection (a) provides that this section may be cited as
the Charitable Choice Act of 2001.
Subsection (b)--Purposes
Subsection (b) provides that the purposes of the Charitable
Choice Act of 2001 are to enable assistance to be provided to
individuals and families in need in the most effective and
efficient manner; to supplement the nation's social service
capacity by facilitating the entry of new, and the expansion of
existing, efforts by religious and other community
organizations in the administration and distribution of
Government assistance under the covered Government programs; to
prohibit discrimination against religious organizations on the
basis of religion in the administration and distribution of
Government assistance under such programs; to allow religious
organizations to participate in the administration and
distribution of such assistance without impairing the religious
character and autonomy of such organizations; and to protect
the religious freedom of individuals and families in need who
are eligible for Government assistance, including expanding the
possibility of their being able to choose to receive services
from a religious organization providing such assistance.
Subsection (c)--Religious Organizations Included as Providers,
Disclaimers
Subsection (c) provides that for any covered program that
is carried out by the Federal Government, or by a State or
local government with Federal funds, the Government shall
consider, on the same basis as other non-governmental
organizations, religious organizations to provide the
assistance under the program, and the program shall be
implemented in a manner that is consistent with the
Establishment Clause and the Free Exercise Clause of the First
Amendment to the Constitution. It also provides that neither
the Federal Government, nor a State or local government
receiving funds under a covered program, shall discriminate
against an organization that provides assistance under, or
applies to provide assistance under, such program on the basis
that the organization is religious or has a religious
character. Subsection (c) also makes clear that Federal, State,
or local government funds or other assistance that is received
by a religious organization for the provision of services under
this section constitutes aid to individuals and families in
need, the ultimate beneficiaries of such services, and not
support for religion or the organization's religious beliefs or
practices, and that the receipt by a religious organization of
Federal, State, or local government funds or other assistance
under this section is not an endorsement by the Government of
religion or of the organization's religious beliefs or
practices. Subsection (c) defines the covered programs as those
that involve activities carried out using Federal funds and
that are related to the prevention and treatment of juvenile
delinquency and the improvement of the juvenile justice system,
including programs funded under the Juvenile Justice and
Delinquency Prevention Act of 1974; related to the prevention
of crime and assistance to crime victims and offenders'
families, including programs funded under title I of the
Omnibus Crime Control and Safe Streets Act of 1968; related to
the provision of assistance under Federal housing statutes,
including the Community Development Block Grant Program
established under title I of the Housing and Community
Development Act of 1974; under subtitle B or D of title I of
the Workforce Investment Act of 1998; under the Older Americans
Act of 1965; related to the intervention in and prevention of
domestic violence, including programs under the Child Abuse and
Prevention and Treatment Act or the Family Violence Prevention
and Services Act; related to hunger relief activities; under
the Job Access and Reverse Commute grant program established
under section 3037 of the Federal Transit Act of 1998; or that
involve activities to assist students in obtaining the
recognized equivalents of secondary school diplomas and
activities relating to non-school hours programs, including
programs under chapter 3 of subtitle A of title II of the
Workforce Investment Act of 1998 or part I of title X of the
Elementary and Secondary Education Act; but not if they include
activities carried out under Federal programs providing
education to children eligible to attend elementary schools or
secondary schools, as defined in section 14101 of the
Elementary and Secondary Education Act of 1965.
Subsection (d)--Organizational Character and Autonomy
Subsection (d) provides that a religious organization that
provides assistance under a covered program shall have the
right to retain its autonomy from Federal, State, and local
governments, including such organization's control over the
definition, development, practice, and expression of its
religious beliefs. Neither the Federal Government, nor a State
or local government with Federal funds, shall require a
religious organization, in order to be eligible to provide
assistance under a covered program, to alter its form of
internal governance or provisions in its charter documents or
to remove religious art, icons, scripture, or other symbols, or
to change its name, because such symbols or names are of a
religious character.
Subsection (e)--Employment Practices
Subsection (e) provides that a religious organization's
exemption provided under section 702 of the Civil Rights Act of
1964 regarding employment practices shall not be affected by
its participation in, or receipt of funds from, covered
programs, and any provision in such programs that is
inconsistent with, or would diminish, the exercise of an
organization's autonomy recognized in section 702 or in this
section shall have no effect. The duties of religious
organizations not to discriminate based on race, color, sex,
and national origin, from which religious organizations are not
exempt under title VII, are retained.
Subsection (f)--Effect on Other Laws
Subsection (f) provides that nothing in this section alters
the duty of a religious organization receiving assistance or
providing services under a covered program to comply with the
nondiscrimination provisions in title VI of the Civil Rights
Act of 1964, title IX of the Education Amendments of 1972,
section 504 of the Rehabilitation Act of 1973, and the Age
Discrimination Act of 1975.
Subsection (g)--Rights of Beneficiaries of Assistance
Subsection (g) provides that if a beneficiary has an
objection to the religious character of the organization from
which the individual receives, or would receive, assistance
funded under any covered program, the appropriate Federal,
State, or local governmental entity shall provide to such
individual within a reasonable period of time after the date of
such objection, assistance that is an alternative that is
accessible to the individual and unobjectionable to the
individual on religious grounds and has a value that is not
less than the value of the assistance that the individual would
have received from such organization. The appropriate Federal,
State, or local governmental entity shall guarantee that notice
is provided to the beneficiaries of their rights under this
section.
Subsection (h)--Nondiscrimination against Beneficiaries
Subsection (h) provides that a religious organization
providing assistance through a grant or cooperative agreement
under a covered program shall not discriminate, in carrying out
the program, against a beneficiary on the basis of religion, a
religious belief, or a refusal to hold a religious belief. A
religious organization providing assistance through a voucher,
certificate, or other form of indirect assistance under a
covered program shall not deny a beneficiary admission into
such program on the basis of religion, a religious belief, or a
refusal to hold a religious belief.
Subsection (i)--Accountability
Subsection (i) provides that a religious organization
providing assistance under any covered program shall be subject
to the same regulations as other non-governmental organizations
to account, in accord with generally accepted accounting
principles, for the use of such funds and its performance of
such programs. A religious organization providing assistance
through a grant or cooperative agreement under a covered
program shall segregate Government funds provided under such
program into a separate account or accounts, and only the
separate accounts consisting of funds from the Government shall
be subject to audit by the Government. A religious organization
providing assistance through a form of indirect assistance
under a covered program may segregate Government funds provided
under such program into a separate account or accounts and, if
such funds are so segregated, only the separate accounts
consisting of funds from the Government shall be subject to
audit by the Government. Subsection (i) further requires a
religious organization providing services under any covered
program to conduct annually a self audit for compliance with
its duties under this section and to submit a copy of the self
audit to the appropriate Federal, State, or local government
agency, along with a plan to timely correct variances, if any,
identified in the self audit.
Subsection (j)--Limitations on Use of Funds; Voluntariness
Subsection (j) provides that no funds provided through a
grant or cooperative agreement to a religious organization to
provide assistance under any covered program shall be expended
for sectarian instruction, worship, or proselytization. If the
religious organization offers such an activity, it shall be
voluntary for the individuals receiving services and offered
separate from the program funded under subsection (c)(4). A
certificate shall be separately signed by religious
organizations, and filed with the Government agency that
disburses the funds, certifying that the organization is aware
of and will comply with this subsection. Noncompliance with the
certificate is a violation of the grant or cooperative
agreement and shall be enforced in the same manner as other
breaches of a grant or cooperative agreement.
Subsection (k)--Effect on State and Local Funds
Subsection (k) provides that if a State or local government
contributes State or local funds to carry out a covered
program, the State or local government may segregate the State
or local funds from the Federal funds provided to carry out the
program or may commingle the State or local funds with the
Federal funds. If the State or local government commingles the
State or local funds, the provisions of this section shall
apply to the commingled funds in the same manner, and to the
same extent, as the provisions apply to the Federal funds.
Subsection (l)--Indirect Assistance
Subsection (l) provides that, when consistent with the
purpose of a covered program, the Secretary of the department
administering the program may direct the disbursement of some
or all of the funds, if determined by the Secretary to be
feasible and efficient, in the form of indirect assistance.
Subsection (l) defines indirect assistance as assistance in
which an organization receiving funds receives such funds only
as a result of the choices of individual beneficiaries.
Subsection (m)--Treatment of Intermediate Grantors
Subsection (m) provides that if a non-governmental
organization, acting under a grant or other agreement with the
Federal Government, or a State or local government with Federal
funds, is given the authority under the agreement to select
non-governmental organizations to provide assistance under a
covered program, the intermediate grantor shall have the same
duties under this section as the Government when selecting or
otherwise dealing with subgrantors, but the intermediate
grantor, if it is a religious organization, shall retain all
other rights of a religious organization under this section.
Subsection (n)--Compliance
Subsection (n) provides that a party alleging that the
rights of the party under this section have been violated by a
State or local government may bring a civil action for
injunctive relief pursuant to section 1979 of the Revised
Statutes against the State official or local government agency
that has allegedly committed such violation. A party alleging
that the rights of the party under this section have been
violated by the Federal Government may bring a civil action for
injunctive relief in Federal district court against the
official or Government agency that has allegedly committed such
violation.
Subsection (o)--Training and Technical Assistance for Small
Nongovernmental Organizations
Subsection (o) provides that, from amounts made available
to carry out the purposes of the Office of Justice Programs,
funds are authorized to provide training and technical
assistance, directly, or through grants or other arrangements,
in procedures relating to potential application and
participation in covered programs to small nongovernmental
organizations, as determined by the Attorney General, including
religious organizations, in an amount not to exceed $50 million
annually. An amount of no less than $5,000,000 shall be
reserved under this section, and small nongovernmental
organizations may apply for these funds to be used for
assistance in providing full and equal integrated access to
individuals with disabilities in programs under this title. In
giving out the assistance described in this subsection,
priority shall be given to small nongovernmental organizations
serving urban and rural communities.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
that portion of the bill within the jurisdiction of the
Committee on the Judiciary, as reported, are shown as follows
(new matter is printed in italics and existing law in which no
change is proposed is shown in roman):
REVISED STATUTES OF THE UNITED STATES
* * * * * * *
TITLE XXIV.--CIVIL RIGHTS.
* * * * * * *
SEC. 1991. CHARITABLE CHOICE.
(a) Short Title.--This section may be cited as the
``Charitable Choice Act of 2001''.
(b) Purposes.--The purposes of this section are--
(1) to enable assistance to be provided to
individuals and families in need in the most effective
and efficient manner;
(2) to supplement the Nation's social service
capacity by facilitating the entry of new, and the
expansion of existing, efforts by religious and other
community organizations in the administration and
distribution of government assistance under the
government programs described in subsection (c)(4);
(3) to prohibit discrimination against religious
organizations on the basis of religion in the
administration and distribution of government
assistance under such programs;
(4) to allow religious organizations to participate
in the administration and distribution of such
assistance without impairing the religious character
and autonomy of such organizations; and
(5) to protect the religious freedom of individuals
and families in need who are eligible for government
assistance, including expanding the possibility of
their being able to choose to receive services from a
religious organization providing such assistance.
(c) Religious Organizations Included as Providers;
Disclaimers.--
(1) In general.--
(A) Inclusion.--For any program described
in paragraph (4) that is carried out by the
Federal Government, or by a State or local
government with Federal funds, the government
shall consider, on the same basis as other
nongovernmental organizations, religious
organizations to provide the assistance under
the program, and the program shall be
implemented in a manner that is consistent with
the establishment clause and the free exercise
clause of the first amendment to the
Constitution.
(B) Discrimination prohibited.--Neither the
Federal Government, nor a State or local
government receiving funds under a program
described in paragraph (4), shall discriminate
against an organization that provides
assistance under, or applies to provide
assistance under, such program on the basis
that the organization is religious or has a
religious character.
(2) Funds not aid to religion.--Federal, State, or
local government funds or other assistance that is
received by a religious organization for the provision
of services under this section constitutes aid to
individuals and families in need, the ultimate
beneficiaries of such services, and not support for
religion or the organization's religious beliefs or
practices. Notwithstanding the provisions in this
paragraph, title VI of the Civil Rights Act of 1964 (42
USC 2000d et seq.) shall apply to organizations
receiving assistance funded under any program described
in subsection (c)(4).
(3) Funds not endorsement of religion.--The receipt
by a religious organization of Federal, State, or local
government funds or other assistance under this section
is not an endorsement by the government of religion or
of the organization's religious beliefs or practices.
(4) Programs.--For purposes of this section, a
program is described in this paragraph--
(A) if it involves activities carried out
using Federal funds--
(i) related to the prevention and
treatment of juvenile delinquency and
the improvement of the juvenile justice
system, including programs funded under
the Juvenile Justice and Delinquency
Prevention Act of 1974 (42 U.S.C. 5601
et seq.);
(ii) related to the prevention of
crime and assistance to crime victims
and offenders' families, including
programs funded under title I of the
Omnibus Crime Control and Safe Streets
Act of 1968 (42 U.S.C. 3701 et seq.);
(iii) related to the provision of
assistance under Federal housing
statutes, including the Community
Development Block Grant Program
established under title I of the
Housing and Community Development Act
of 1974 (42 U.S.C. 5301 et seq.);
(iv) under subtitle B or D of title
I of the Workforce Investment Act of
1998 (29 U.S.C. 2801 et seq.);
(v) under the Older Americans Act
of 1965 (42 U.S.C. 3001 et seq.);
(vi) related to the intervention in
and prevention of domestic violence,
including programs under the Child
Abuse Prevention and Treatment Act (42
U.S.C. 5101 et seq.) or the Family
Violence Prevention and Services Act
(42 U.S.C. 10401 et seq.);
(vii) related to hunger relief
activities; or
(viii) under the Job Access and
Reverse Commute grant program
established under section 3037 of the
Federal Transit Act of 1998 (49 U.S.C.
5309 note); or
(B)(i) if it involves activities to assist
students in obtaining the recognized
equivalents of secondary school diplomas and
activities relating to nonschool hours
programs, including programs under--
(I) chapter 3 of subtitle A of
title II of the Workforce Investment
Act of 1998 (Public Law 105-220); or
(II) part I of title X of the
Elementary and Secondary Education Act
(20 U.S.C. 6301 et seq.); and
(ii) except as provided in subparagraph (A)
and clause (i), does not include activities
carried out under Federal programs providing
education to children eligible to attend
elementary schools or secondary schools, as
defined in section 14101 of the Elementary and
Secondary Education Act of 1965 (20 U.S.C.
8801).
(d) Organizational Character and Autonomy.--
(1) In general.--A religious organization that
provides assistance under a program described in
subsection (c)(4) shall have the right to retain its
autonomy from Federal, State, and local governments,
including such organization's control over the
definition, development, practice, and expression of
its religious beliefs.
(2) Additional safeguards.--Neither the Federal
Government, nor a State or local government with
Federal funds, shall require a religious organization,
in order to be eligible to provide assistance under a
program described in subsection (c)(4), to--
(A) alter its form of internal governance
or provisions in its charter documents; or
(B) remove religious art, icons, scripture,
or other symbols, or to change its name,
because such symbols or names are of a
religious character.
(e) Employment Practices.--A religious organization's
exemption provided under section 702 of the Civil Rights Act of
1964 (42 U.S.C. 2000e-1) regarding employment practices shall
not be affected by its participation in, or receipt of funds
from, programs described in subsection (c)(4), and any
provision in such programs that is inconsistent with or would
diminish the exercise of an organization's autonomy recognized
in section 702 or in this section shall have no effect. Nothing
in this section alters the duty of a religious organization to
comply with the nondiscrimination provisions of title VII of
the Civil Rights Act of 1964 in the use of funds from programs
described in subsection (c)(4).
(f) Effect on Other Laws.--Nothing in this section shall
alter the duty of a religious organization receiving assistance
or providing services under any program described in subsection
(c)(4) to comply with the nondiscrimination provisions in title
VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.)
(prohibiting discrimination on the basis of race, color, and
national origin), title IX of the Education Amendments of 1972
(20 U.S.C. 1681-1688) (prohibiting discrimination in education
programs or activities on the basis of sex and visual
impairment), section 504 of the Rehabilitation Act of 1973 (29
U.S.C. 794) (prohibiting discrimination against otherwise
qualified disabled individuals), and the Age Discrimination Act
of 1975 (42 U.S.C. 6101-6107) (prohibiting discrimination on
the basis of age).
(g) Rights of Beneficiaries of Assistance.--
(1) In general.--If an individual described in
paragraph (3) has an objection to the religious
character of the organization from which the individual
receives, or would receive, assistance funded under any
program described in subsection (c)(4), the appropriate
Federal, State, or local governmental entity shall
provide to such individual (if otherwise eligible for
such assistance) within a reasonable period of time
after the date of such objection, assistance that--
(A) is an alternative that is accessible to
the individual and unobjectionable to the
individual on religious grounds; and
(B) has a value that is not less than the
value of the assistance that the individual
would have received from such organization.
(2) Notice.--The appropriate Federal, State, or
local governmental entity shall guarantee that notice
is provided to the individuals described in paragraph
(3) of the rights of such individuals under this
section.
(3) Individual described.--An individual described
in this paragraph is an individual who receives or
applies for assistance under a program described in
subsection (c)(4).
(h) Nondiscrimination Against Beneficiaries.--
(1) Grants and cooperative agreements.--A religious
organization providing assistance through a grant or
cooperative agreement under a program described in
subsection (c)(4) shall not discriminate in carrying
out the program against an individual described in
subsection (g)(3) on the basis of religion, a religious
belief, or a refusal to hold a religious belief.
(2) Indirect forms of assistance.--A religious
organization providing assistance through a voucher,
certificate, or other form of indirect assistance under
a program described in subsection (c)(4) shall not deny
an individual described in subsection (g)(3) admission
into such program on the basis of religion, a religious
belief, or a refusal to hold a religious belief.
(i) Accountability.--
(1) In general.--Except as provided in paragraphs
(2) and (3), a religious organization providing
assistance under any program described in subsection
(c)(4) shall be subject to the same regulations as
other nongovernmental organizations to account in
accord with generally accepted accounting principles
for the use of such funds and its performance of such
programs.
(2) Limited audit.--
(A) Grants and cooperative agreements.--A
religious organization providing assistance
through a grant or cooperative agreement under
a program described in subsection (c)(4) shall
segregate government funds provided under such
program into a separate account or accounts.
Only the separate accounts consisting of funds
from the government shall be subject to audit
by the government.
(B) Indirect forms of assistance.--A
religious organization providing assistance
through a voucher, certificate, or other form
of indirect assistance under a program
described in subsection (c)(4) may segregate
government funds provided under such program
into a separate account or accounts. If such
funds are so segregated, then only the separate
accounts consisting of funds from the
government shall be subject to audit by the
government.
(3) Self audit.--A religious organization providing
services under any program described in subsection
(c)(4) shall conduct annually a self audit for
compliance with its duties under this section and
submit a copy of the self audit to the appropriate
Federal, State, or local government agency, along with
a plan to timely correct variances, if any, identified
in the self audit.
(j) Limitations on Use of Funds; Voluntariness.--No funds
provided through a grant or cooperative agreement to a
religious organization to provide assistance under any program
described in subsection (c)(4) shall be expended for sectarian
instruction, worship, or proselytization. If the religious
organization offers such an activity, it shall be voluntary for
the individuals receiving services and offered separate from
the program funded under subsection (c)(4). A certificate shall
be separately signed by religious organizations, and filed with
the government agency that disburses the funds, certifying that
the organization is aware of and will comply with this
subsection.
(k) Effect on State and Local Funds.--If a State or local
government contributes State or local funds to carry out a
program described in subsection (c)(4), the State or local
government may segregate the State or local funds from the
Federal funds provided to carry out the program or may
commingle the State or local funds with the Federal funds. If
the State or local government commingles the State or local
funds, the provisions of this section shall apply to the
commingled funds in the same manner, and to the same extent, as
the provisions apply to the Federal funds.
(l) Indirect Assistance.--When consistent with the purpose
of a program described in subsection (c)(4), the Secretary of
the department administering the program may direct the
disbursement of some or all of the funds, if determined by the
Secretary to be feasible and efficient, in the form of indirect
assistance. For purposes of this section, ``indirect
assistance'' constitutes assistance in which an organization
receiving funds through a voucher, certificate, or other form
of disbursement under this section receives such funding only
as a result of the private choices of individual beneficiaries
and no government endorsement of any particular religion, or of
religion generally, occurs.
(m) Treatment of Intermediate Grantors.--If a
nongovernmental organization (referred to in this subsection as
an ``intermediate grantor''), acting under a grant or other
agreement with the Federal Government, or a State or local
government with Federal funds, is given the authority under the
agreement to select nongovernmental organizations to provide
assistance under the programs described in subsection (c)(4),
the intermediate grantor shall have the same duties under this
section as the government when selecting or otherwise dealing
with subgrantors, but the intermediate grantor, if it is a
religious organization, shall retain all other rights of a
religious organization under this section.
(n) Compliance.--A party alleging that the rights of the
party under this section have been violated by a State or local
government may bring a civil action for injunctive relief
pursuant to section 1979 against the State official or local
government agency that has allegedly committed such violation.
A party alleging that the rights of the party under this
section have been violated by the Federal Government may bring
a civil action for injunctive relief in Federal district court
against the official or government agency that has allegedly
committed such violation.
(o) Training and Technical Assistance for Small
Nongovernmental Organizations.--
(1) In general.--From amounts made available to
carry out the purposes of the Office of Justice
Programs (including any component or unit thereof,
including the Office of Community Oriented Policing
Services), funds are authorized to provide training and
technical assistance, directly or through grants or
other arrangements, in procedures relating to potential
application and participation in programs identified in
subsection (c)(4) to small nongovernmental
organizations, as determined by the Attorney General,
including religious organizations, in an amount not to
exceed $50 million annually.
(2) Types of assistance.--Such assistance may
include--
(A) assistance and information relative to
creating an organization described in section
501(c)(3) of the Internal Revenue Code of 1986
to operate identified programs;
(B) granting writing assistance which may
include workshops and reasonable guidance;
(C) information and referrals to other
nongovernmental organizations that provide
expertise in accounting, legal issues, tax
issues, program development, and a variety of
other organizational areas; and
(D) information and guidance on how to
comply with Federal nondiscrimination
provisions including, but not limited to, title
VI of the Civil Rights Act of 1964 (42 U.S.C.
2000d et seq.), title VII of the Civil Rights
Act of 1964 (42 U.S.C. 2000e et seq.), the Fair
Housing Act, as amended (42 U.S.C. 3601 et
seq.), title IX of the Education Amendments of
1972 (20 U.S.C. 1681-1688), section 504 of the
Rehabilitation Act of 1973 (29 U.S.C. 694), and
the Age Discrimination Act of 1975 (42 U.S.C.
6101-6107).
(3) Reservation of funds.--An amount of no less
than $5,000,000 shall be reserved under this section.
Small nongovernmental organizations may apply for these
funds to be used for assistance in providing full and
equal integrated access to individuals with
disabilities in programs under this title.
(4) Priority.--In giving out the assistance
described in this subsection, priority shall be given
to small nongovernmental organizations serving urban
and rural communities.
Committee Jurisdiction Letters
Markup Transcript
BUSINESS MEETING
THURSDAY, JUNE 28, 2001
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:35 a.m., in
Room 2141, Rayburn House Office Building, Hon. F. James
Sensenbrenner, Jr., Chairman of the Committee, presiding.
Chairman Sensenbrenner. The Committee will be in order.
Without objection, the Chair has given the authority to grant
or call recesses at any point in today's markup. A working
quorum is present.
Pursuant to notice, I now call up the bill H.R. 7, the
Charitable Choice Act of 2001 for purposes of markup, and move
its favorable recommendation to the House.
Without objection, the bill will be considered as read and
open to amendment at any point.
[The bill, H.R. 7, follows:]
Chairman Sensenbrenner. The Chair recognizes the gentleman
from Ohio, Mr. Chabot, the Chairman of the Subcommittee on the
Constitution for 5 minutes.
Mr. Chabot. Thank you, Mr. Chairman.
While the First Amendment to the Constitution provides that
the government shall not establish a particular religion or
religion over non-religion, 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, embedded in
H.R. 7, the Community Solutions Act, which we're considering
today, allow for the public funding of faith-based
organizations that have demonstrated abilities to meet the
basic needs of their neighbors in trouble, while also
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, and by prohibiting the use of Federal funds
for sectarian worship, instruction of proselytizing. Charitable
choice simply means equal access.
Four existing charitable choice programs have been passed
by Congress and signed into law by President Clinton, the first
which was part of the 1996 Welfare Reform Act. These programs
have benefited thousands of persons in need without raising
constitutional concerns in their implementation.
When the government takes so much from average citizens in
taxes, little is left for those families to give to their 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.
The charitable choice principles in H.R. 7 recognize that
it is wrong to assume that religious people can't be trusted to
follow rules against using Federal funds for proselytizing
activities, and on that basis deny them equal opportunities.
The Supreme Court has long recognized that, and now the
Congress should too.
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 America's people in need. We're considering today
whether the legions of faith-based organizations in the inner
cities and local communities can compete for Federal funds to
help pay the heating bills in shelters for women victims of
domestic violence, to help them pay for training materials
teaching basic work skills, to help them feed the hungry, and
to provide other social service to those that are most
desperate among us.
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 the 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
unanimous Supreme Court, including Justice Brennan and Justice
Marshall.
As 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 truly a 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 essential parts of our
education, health care and child care systems.
The Constitution does not require rolling back essential
services. Indeed, the Constitution and the free exercise clause
allow Congress to improve essential services 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.
H.R. 7 makes clear that you can't discriminate against
faith-based organizations, and that what they believe should
have no bearing on how they are evaluated regarding what they
can do. The Supreme Court has made clear that religious people
should be trusted to follow rules against using Federal funds
to proselytize, and it's time that Congress did the same.
Yield back the balance of my time.
Mr. Berman. Would the gentleman yield?
Mr. Chabot. I'm out of time.
Chairman Sensenbrenner. The time of the gentleman has
expired. Who wishes to give the statement for the minority in
the absence of Mr. Conyers? The gentleman from New York, Mr.
Nadler.
Mr. Nadler. Thank you, Mr. Chairman.
Today we wade into an area of the law which is, I think
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 in the very difficult issues
which surround 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 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 pretend that they did
not exist.
I think Chairman Sensenbrenner is to be commended for
standing up to what can only be described as tremendous
pressure from the White House and from his own leadership, to
lay aside his concerns about these important questions and
simply push the bill along.
While I have many reservations about the language we have
before us, indeed I think some changes made in the substitute
are changes for the worse, and the risks this legislation poses
to religious liberty, I do not think our disagreement should
obscure the Chairman's very real efforts to begin to get this
right.
I hope today's markup will be a first step. I would note
that Senator Sentorum and former Senator Wolford have assembled
a group from many different viewpoints on this issue to try to
find some common ground. I will be joining that effort, and I
would invite the Chairman to view today's markup and his
efforts leading up to today as a first step, and I would hope
the Chairman would join that effort also, to find common
ground.
Religion should not divide this Nation. If anything, our
common commitment to the freedom of conscience should be the
one fundamental principle which unites all of us. I recall that
when I was first elected to the Congress, one of my first
efforts was to work for passage of the Religious Freedom
Restoration Act, and last year for the Religious Land Use and
Institutionalized Persons Act. Those efforts united everyone
from the ACLU to the National Association of Evangelicals, from
the Religious Action Center of Reform Judaism to the Christian
Legal Society. In fact, many of the players in that legislation
have been before the Constitution Subcommittee to present very
differing views on this proposal.
I think certain principles are applicable. Certainly
Madison's view is expressed in his memorial in 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 in Madison's time, or to funding other pervasively
sectarian activities as Justice Thomas and three other Justices
would permit today.
Mr. Chairman, under current law, pervasively sectarian
institutions are perfectly free to compete for Federal grants
for social programs on the same basis as non-sectarian
institutions. They simply have to form a 501(c)(3) not-for-
profit affiliate in today's law. That provision that they must
fund a 501(c)(3) is designed to protect the sectarian
organization, to protect the church from government intrusion
and government audits and government regulation. This bill,
unfortunately and very unwisely, would repeal that requirement
and would allow the funding directly into church funds, which
would lead to government audits of those funds and of the
church's funds with which they are commingled unavoidably. That
is a very unfortunate step which will lead to government
regulation of churches and other institutions and is the first
step on a very bad road.
Secondly, Mr. Chairman, this bill would extend the
exemptions from the Civil Rights Act to activities involving
the use of government funds, and under this bill, there would
be enabled to be discrimination on the basis of religion and
some other bases in the use of Federal funding, and I do not
believe that if a church is running a soup kitchen for poor
people, that they should be permitted to discriminate on a
religious or other basis, in who can serve out the soup or who
can drink the soup.
Number three, this bill would permit the proselytization
with government funds. It says the funds may not be used for
proselytization, but it certainly does not preclude the
church's funds from being commingled and used for
proselytization in a program which is federally funded.
I think these are three fundamental breaches of the wall of
separation of church and state.
Finally, on the subject of religious autonomy, religious
institutions are being coaxed into a devil's bargain. There are
precious few constitutional restrictions of the rules
government may now apply to religious institutions. 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 muscle. 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 with freedom of religion.
I thank the Chairman and I yield back.
Chairman Sensenbrenner. Without objection, all Members'
opening statements will appear in the record at this point, and
I have an amendment at the desk.
[The statement of Ms. Jackson Lee follows:]
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress From the State of Texas
I want to thank Chairman Sensenbrenner and Ranking Member Conyers
for convening this important markup on H.R. 7, ``the Charitable Choice
Act of 2001.'' It is imperative that the Committee gives careful
consideration to this legislation; we must evaluate its merits closely.
The basic elements of charitable choice, as found in 104 of the
1996 ``welfare reform'' law, provide that if a State administration
Temporary Assistance for Needy Families (TANF) block granted programs,
or Welfare-to-Work grants under TANF, the State may not, in the
distribution of such funding or contracts discriminate against any
religious organization. As a general matter, let me just say that we
are confronting serious civil rights concerns with respect to
government involvement in religion.
The legislation before this committee clearly raises some serious
constitutional issues which must be addressed. The limited proposed
changes put forward by the Bush administration do little to the
constitutional and civil rights problems that exist within this
proposal. The Charitable Choice provisions of this bill remain in
conflict with the Establishment Clause of the First Amendment and would
possibly undermine nearly sixty years of federal civil rights
protections against most uses of federal money by persons engaged in
employment discrimination based on religion.
Unfortunately, the charges incorporated into H.R. 7 are
counterproductive or harmful and do little to change or address the
issues even said he was committed to addressing. In short, the bill
still allows federal funds to flow directly to religiously
organizations and still in direct violation of the Establishment
Clause. Although the U.S. Supreme Court has allowed religiously
affiliated organizations to provide government-funded services in a
secular manner, it has never allowed religious institutions to receive
direct government aid. I am concerned that H.R. 7 would mandate that
federal, State, and local governments award federally funded contracts
to any religious organization, on the same basis as any other
organization, without ``impairing the religious character of the
organizations.'' Given that no changes were proposed to this problem,
H.R. 7 still limits the availability of a State to even question
whether or not it will be funded a sectarian or secular program, Mr.
Chairman.
Further, this bill attempts to address the employment
discrimination problem in H.R. 7 by removing language that would allow
religious organizations to require beneficiaries to ``adhere to the
religious beliefs and practices of the organization.'' However, the
``religious practices'' language does not change the fundamental civil
rights problem with this provision. H.R. 7 would still put the
government squarely in the business of funding discrimination. We must
remember that the provision provides that religious organizations may
retain their right under Title VII of the Civil Rights Act of 1964 to
discriminate in employment by preferring members of their own religion.
Allowing federal funds to go to persons who discriminate based on
religion undermines core civil rights protections that date back to the
time of President Franklin Delano Roosevelt. Although current law
allows religious organizations to use their own private money to prefer
members of their own religion, they generally cannot use federal funds
to discriminate. Congress and the Executive Branch have further
extended the prohibition on federally funded religious discrimination
by adding statutes and regulations affecting a wide range of federal
contracts and grants programs. For sixty years, the basic principle has
been that the federal government should not be financing religious
discrimination against others.
Finally, while the Manager's Amendment deleted language allowing
religious organizations to safeguard their ``religious practices'' the
manager's amendment added other equally problematic new language
striking out any provision (such as discrimination requirements) in any
other government program which may be `inconsistent with'' or ``would
diminish'' the religious organization's autonomy. This is all
apparently quite confusing.
Mr. Chairman, we must proceed very carefully.
[The statement of Mr. Barr follows:]
Prepared Statement of the Honorable Bob Barr, a Representative in
Congress From the State of Georgia
Mr. Chairman, the practice of engaging faith-based organizations in
the delivery of social services using government funds is not new. This
has been happening at the State and local level for years. Religious-
oriented and faith-based programs are provided funds to do what local
governments do not have the capacity to do--provide a full spectrum of
successful community services. It is time the federal government follow
the lead of our State legislatures and local governments, and put the
best organizations to work for the betterment of our communities.
H.R. 7, the Charitable Choice Act of 2001, will significantly
impact the degree to which prevention, treatment, and other social
service programs reach and rehabilitate those most in need. The faith
community has achieved results in ways in which other programs have
not, mainly due to unique element of faith and how it impacts the
structure and success of these programs. The Congress needs to support
and encourage such programs that work, that is why I am pleased to be a
co-sponsor of Congressman J.C. Watts' bill, H.R. 7.
Mr. Chairman, I'd like to address the concern being raised by
opponents of the legislation who charge that, on enactment of H.R. 7,
the federal government will begin discriminating against certain
religions that aren't officially ``approved'' or ``condoned'' by
government bureaucrats. Opponenets also charge this legislation will
result in the federal government being in a position of supporting, or
even establishing, a religion or religious preference. These charges
are completely unfounded.
Charitable Choice is not a set-aside program; it is merely an
opportunity to open up the system of delivery of social services, so
that all groups meeting the prescribed performance requirements are
allowed to compete fairly. If anything, under current law and practice,
the government is practicing a form of discrimination by not allowing
sectarian organizations to compete for government funds available to
non-sectarian groups. Under this bill, any organization--religious or
otherwise--would be able to compete, with the sole focus being on which
groups best deliver services to the most needy in our communities. The
religious affiliation or nature of an organization should not preclude
it from receiving government funds, if such organizations successfully
deliver needed services and so long as they meet the objective criteria
the law requires.
Recently, I participated in a panel discussion on Faith-Based
Initiatives, as a part of the President's Faith-Based Summit. The on-
going goal of the summit is to establish networks of mutual support as
we work to revitalize communities across the nation through faith-based
and locally controlled initiatives.
Government must begin to view faith-based and community
organizations as partners, not competitors--or worse, as some would
have it, adversaries--in the fight against drug usage, poverty, teen
pregnancy, and other social ills. There are millions across the country
who need help. Under President Bush's initiative, as reflected in this
legislation, faith-based organizations can now play a vital and needed
in role in providing that help. H.R. 7 will make a significant and
needed impact on improving the lives of all members of the community,
and I strongly support its passage.
Chairman Sensenbrenner. The clerk will report the----
Mr. Conyers. Hold it, Mr. Chairman, hold it. You missed----
The Clerk. Amendment to H.R. 7, offered by Mr.
Sensenbrenner----
Mr. Conyers. Hold it, Mr. Chairman. You missed the Ranking
Member.
Chairman Sensenbrenner. I had thought that the gentleman
from New York had given the minority statement, but if the
gentleman from Michigan wishes to say something, he is
recognized for 5 minutes.
Mr. Conyers. Thank you, sir. While I support the gentleman
from New York entirely, I had prepared my own set of opening
remark statements.
And it will only take a moment or two, because we all agree
at the outset that religious organizations play a positive role
in our communities, and we all want them to play a large and
positive role in the lives of our children. That's a good
starting point.
Now, there are some, however, that believe we can
accomplish this goal by government mandate. Some believe we can
have the best of both worlds, better social services, and more
religion, without intruding on religious prerogatives. But what
they fail to grasp is that we pass new laws--if we pass new
laws requiring that our government begin funding religious--
pervasively religious programs, we'll be sacrificing two of our
Nation's most fundamental principles of justice and liberty. We
will be saying that it's okay to use taxpayer funds to fund
employment discrimination.
Now at this stage and time in the development of our Nation
toward improved policies of race, do we really want to say
that? By taking the religious exemption to the civil rights
laws and extending it to charitable choice, as the measure
before us unfortunately does, we'll be saying it's acceptable
to openly discriminate against gays, or divorced persons, or
unmarried pregnant women, or women who have had an abortion, or
persons who use birth control, or even persons who favor
reproductive rights, and against individuals married to a
member of another race, or any manner of unusual personal
sentiments that one may be entitled to have, but that we don't
want grafted into the law.
And so that's why all the civil rights groups strongly have
reservations about the measure before us. It has nothing to do
with anything against religion, but they believe we do nothing
to help poor and needy individuals if we indeed tolerate more
discrimination. By approving the expenditure of government
funds for pervasively-sectarian programs, this measure
wittingly opens a very large hole in the wall separating church
and state, and I say this because the safeguards included in
this legislation are frankly largely illusory. The non-
sectarian alternative provided in the bill, for openers, is
totally unfunded. The language specifying that the religious
aspects of government funded programs ought to be voluntary and
offered separately will be impossible to enforce. The audit
requirements will be of little or no benefit since they are
self imposed and not subject to government review or any other
outside review. So because our First Amendment, we have the
most carefully and strongly, a very diverse Nation, maybe in
the world. Our country has more religious diversity than
anywhere else on the planet. Dr. Martin Luther King, Jr. once
said in America, that the church is not the master of the
State, nor is it the servant of the State, but it is the
conscience of the State. My fear is that under this bill,
religion may become the servant of the State rather than its
conscience.
So if all of us gathered here really want to do something
to help religion, you might try to include the proposed
charitable tax deductions in their $2 trillion tax bill, which
was so heavily slanted toward the wealthy. If you want to do
something to improve social services, then we might consider
increasing funding for drug treatment, for literacy, for child
welfare. If you want to help our kids and our urban areas, we
might try to figure a better way to rebuild our crumbling
schools. And so I urge that we carefully and soberly consider
the alternatives that will be presented before us during this
discussion.
And I thank the Chairman very much.
Chairman Sensenbrenner. The gentleman's time has expired.
The Chair would like to announce what the schedule will be
for today. We are told that at approximately noon there will be
votes on several amendments and a recommittal and passage vote
on the Energy and Water Appropriations Bill currently pending
on the floor. At that point in time, it is the intention of the
Chair to adjourn for lunch, and we will come back either at
1:30 or 2:00 o'clock, depending upon when these votes are
called.
It is also the intention of the Chair not to adjourn this
Committee until we have a final vote on the motion to report
the bill favorably, so I would urge the Members to be prepared
to stick around because we're going to get this done today, one
way or the other.
The Chair has an amendment at the desk and the clerk will
report the amendment.
The Clerk. Amendment to H.R. 7 offered by Mr.
Sensenbrenner.
Chairman Sensenbrenner. Will the clerk pull the microphone
closer to her?
The Clerk. Amendment to H.R. 7 offered by Mr.
Sensenbrenner. Strike section 104 and insert the following.
Chairman Sensenbrenner. Without objection, the amendment
will be considered as read and open for amendment at any point.
[The amendment follows:]
Chairman Sensenbrenner. And the Chair recognizes himself.
The proposed changes embodied in my amendment clarify
current provisions and improve the legislation by refining the
bill in ways that further protect it from constitutional
challenge. I realize that some entered the room today intending
to oppose reporting H.R. 7 favorably. However, I encourage all
of you to consider the important changes made by this
amendment, and to perhaps re-examine your position on the
entire bill. I sincerely believe this amendment firms up the
constitutionality of the bill and expands the options of
individuals to receive government services from the type of
organization they themselves are most comfortable with.
To begin with, this amendment would make it clear that when
a beneficiary has an objection to the religious nature of a
provider, an alternative provider is required that is
unobjectionable to the beneficiary on religious grounds, that
the alternative provider need not be non-religious in
character. The same requirement appears charitable choice
provisions of the 1996 Welfare Reform Act. If, of course, a
beneficiary objects to being served by any faith-based
organization, under this amendment, such a beneficiary would be
guaranteed a secular alternative.
Existing charitable choice law contains an explicit
protection of a beneficiary's right to refuse to actively
participate in a religious practice, thereby ensuring the
beneficiary's right to avoid any, and I mean any, unwanted
sectarian practices. This protection is in 42 U.S.C. 204a(g),
part of the Welfare Reform Act of 1996. Such a provision makes
clear that participation, if any, in a sectarian practice is
voluntary and noncompulsory. Further, Justices O'Connor and
Breyer, in the Helms case, require that no government funds be
diverted to religious indoctrination. Therefore, religious
organizations receiving direct funding will have to separate
their social service program from sectarian practices. If any
part of a faith-based organization's activities involve
religious indoctrination, such activities must be set apart
from the government funded program, and hence, privately
funded.
For example, a welfare-to-work program operated by a church
in Philadelphia illustrates how this can be done successfully.
Teachers in the program conduct readiness-to-work classes in
the church basement weekdays pursuant to a government grant.
During a free time period, the pastor of the church holds a
voluntary Bible study in her office up on the ground floor,
separate from where the social services activities take place.
The sectarian instruction is privately funded and separated in
both time and location from the welfare-to-work classes. And no
one is required to participate in the Bible study in order to
complete the readiness-to-work program.
The Department of Justice recommends that H.R. 7 be
strengthened by amending Subsection (i) by including an even
clearer statement of the voluntariness requirement, namely
that, quote, ``If the religious organization offers sectarian
instruction, worship or proselytization, it shall be voluntary
for the individuals receiving services and offered separate
from the program funded under this subpart.'' Unquote. Also the
amendment includes a requirement that a certificate shall be
separately signed by religious organizations and filed with the
government agency that disburses the funds, certifying that the
organization is aware of and will take care to comply with this
subsection.
The amendment makes clear that a failure to comply with the
terms of the certification may result in the withholding of
funds and the suspension or termination of the agreement. The
amendment also makes clear that volunteers cannot come in to a
federally-funded program and proselytize or otherwise engage in
sectarian activity. The amendment also includes Subsection
(h)(1), to permit the review of the performance of the program
itself and not just its fiscal aspect. This amendment is needed
to prevent an unconstitutional preference for faith-based
organizations as secular programs are subject to both types of
review, meaning performance review and fiscal review.
I ask unanimous consent for four additional minutes.
Also, nothing in H.R. 7 prevents officials from
implementing reasonable and prudent procurement regulations,
and it is not uncommon for program policies to require
providers to conduct periodic compliance self audits. Any
discrepancies uncovered in a self audit must be promptly
reported to the government along with a plan to timely correct
any deficiencies. This amendment, which is a good suggestion
from the Department of Justice, would codify such a self-audit
requirement for faith-based organizations receiving Federal
funds, and it would be prudent to add this additional provision
to H.R. 7.
One of the most important guarantees of institutional
autonomy is a faith-based organization's ability to select its
own staff in a manner that takes into account its faith. It was
for this reason that Congress wrote an exemption from religious
discrimination by religious employers into title VII of the
Civil Rights Act of 1964. And charitable choice laws
specifically provide that faith-based organizations retain this
limited exemption from Federal employment nondiscrimination
laws.
The amendment would replace existing language in H.R. 7
with the same language used in the 1996 Welfare Reform Act,
which was signed into law by President Clinton, with an
additional clause, making it clear that contrary provisions in
Federal programs covered by H.R. 7 have no force in effect.
This additional clause was not necessary in the '96 Welfare
Reform Act because it codified charitable choice rules for a
new program, whereas H.R. 7 covers already existing programs
that may have conflicting provisions. This amendment is offered
to avoid any confusion.
The language of the 1996 Welfare Reform Act did nothing,
and I repeat, nothing to roll back existing civil rights laws,
and that same language is used in this amendment. It is
important for all of us to understand that this bill and the
amendment do not change existing antidiscrimination laws one
bit, either with respect to employers or beneficiaries. Faith-
based organizations must comply with civil rights laws,
prohibiting discrimination on the basis of race, color,
national origin, gender, age and disability.
Since 1964 faith-based organizations have been entitled to
the title VII exemption to hire staff that share religious
beliefs. The courts, including the Supreme Court, have upheld
this exemption. Do critics of these laws really want to revoke
current public funding from thousands of child care centers,
colleges and universities that receive Federal funds in the
form of Pell grants, veteran's benefits, vocational training,
et cetera, because these institutions hire faculty and staff
that share religious beliefs?
My amendment would also limit parties alleging that their
rights under this section have been violated to injunctive
relief, just as the 1996 Welfare Reform Act charitable choice
provisions limit liability for violations of its provisions to
injunctive relief.
This amendment has been requested by the National League of
Cities, the National Association of Counties and the Conference
of Mayors.
Finally, my amendment further solidifies the
constitutionality of H.R. 7 and will assist in the practical
implementation of its terms. I urge my colleagues to support
it, and my time has now expired.
[The statement of Chairman Sensenbrenner follows:]
Prepared Statement of the Honorable F. James Sensenbrenner, Jr., a
Representative in Congress From the State of Wisconsin
The proposed changes embodied in my amendment clarify H.R. 7's
current provisions and improve the legislation by refining the bill in
ways that further protect it from constitutional challenge. I realize
that some entered the room today intending to oppose reporting H.R. 7
favorably, however, I urge you to consider the important changes made
by this amendment and perhaps reexamine your position on the entire
bill. I sincerely believe that the amendment firms up the
constitutionality of the bill and expands the options of individuals to
receive government services from the type of organization they are most
comfortable with.
To begin with, this amendment would make clear that, when a
beneficiary has an objection to the religious nature of a provider, an
alternative provider is required that is unobjectionable to the
beneficiary on religious grounds, but that the alternative provider
need not be nonreligious. This same requirement appears in the
charitable choice provisions of the 1996 Welfare Reform Act. If, of
course, a beneficiary objects to being served by any faith-based
organization, under this amendment such a beneficiary would be
guaranteed a secular alternative.
Existing charitable choice law contains an explicit protection of a
beneficiary's right to ``refus[e] to actively participate in a
religious practice,'' thereby insuring a beneficiary's right to avoid
any unwanted sectarian practices.
This protection is in 42 U.S.C. Sec. 604a(g), part of the Welfare
Reform Act of 1996. Such a provision makes clear that participation, if
any, in a sectarian practice is voluntary or noncompulsory. Further,
Justices O'Connor and Breyer require that no government funds be
diverted to ``religious indoctrination.'' Therefore, religious
organizations receiving direct funding will have to separate their
social service program from their sectarian practices. If any part of a
faith-based organization's activities involve ``religious
indoctrination,'' such activities must be set apart from the
government-funded program and, hence, privately funded.
For example, a welfare-to-work program operated by a church in
Philadelphia illustrates how this can be done successfully. Teachers in
the program conduct readiness-to-work classes in the church basement
weekdays pursuant to a government grant. During a free-time period the
pastor of the church holds a voluntary Bible study in her office up on
the ground floor.
The sectarian instruction is privately funded and separated in both
time and location from the welfare-to-work classes--and no one is
required to participate in the bible study in order to complete the
bible study in order to complete the readiness-to-work program.
The Department of Justice recommends that H.R. 7 be strengthened by
amending subsection (i) by including an even clearer statement of the
voluntariness requirement, namely that ``If the religious organization
offers [sectarian instruction, worship, or proselytization], it shall
be voluntary for the individuals receiving services and offered
separate from the program funded under this subpart.'' Also, the
amendment includes a requirement that a certificate shall be separately
signed by religious organizations, and filed with the government agency
that disburses funds, certifying that the organization is aware of and
will take care to comply with this subsection.
The amendment makes clear that a failure to comply with the terms
of the certification may result in the withholding of the funds and the
suspension or termination of the agreement. The amendment also makes
clear that volunteers cannot come into a federally funded program and
proselytize or otherwise engage in sectarian activity.
The amendment also includes subsection (h)(1) to permit review of
the performance of the program itself, not just its fiscal aspects.
This amendment is needed to prevent an unconstitutional preference for
faith-based organizations, as secular programs are subject to both
types of review.
Also, nothing in H.R. 7 prevents officials from implementing
reasonable and prudent procurement regulations, and it is not uncommon
for program policies to require providers to conduct periodic
compliance self-audits. Any discrepancies uncovered in a self-audit
must be promptly reported to the government along with a plan to timely
correct any deficiencies. This amendment, which is a good suggestion
from the Department of Justice, would codify such a self-audit
requirement for faith-based organizations receiving federal funds, and
it would be prudent to add this additional provision to H.R. 7.
One of the most important guarantees of institutional autonomy is a
faith-based organization's ability to select its own staff in a manner
that takes into account its faith. It was for this reason that Congress
wrote an exemption from religious discrimination by religious employers
into Title VII of the Civil Rights Act of 1964, and charitable choice
laws specifically provide that faith-based organizations retain this
limited exemption from federal employment nondiscrimination laws.
The amendment would replace existing language in H.R. 7 with the
same language used in the 1996 Welfare Reform Act, which was signed
into law by President Clinton, with an additional clause making clear
that contrary provisions in the federal programs covered by H.R. 7 have
no force and effect. This additional clause was not necessary in the
1996 Welfare Reform Act because it codified charitable choice rules for
a new program, whereas H.R. 7 covers already-existing programs that may
have conflicting provisions. This amendment is offered to avoid any
confusion. The language of the 1996 Welfare Reform Act did nothing to
``roll back'' existing civil rights laws, and that same language is
used in this amendment.
It is important for all to understand that this bill does not
change the anti-discrimination laws one bit--either with respect to
employees or beneficiaries.
Faith-based organizations must comply with civil rights laws
prohibiting discrimination on the basis of race, color, national
origin, gender, age and disability. Since 1964, Faith-based
organizations have been entitled to the Title VII exemption to hire
staff that share religious beliefs--courts, including the Supreme
Court, have upheld this exemption. Do the critics of these laws really
want to revoke current public funding from the thousands of child care
centers, colleges and universities that receive federal funds--in the
form of Pell Grants, veterans benefits, vocational training, etc.--
because these institutions hire faculty and staff that share religious
beliefs?
My amendment would also limit parties alleging that their rights
under this section have been violated to injunctive relief, just as the
1996 Welfare Reform Act's charitable choice limited liability for
violations of its provisions to injunctive relief.
This amendment has been requested by the National League of Cities,
the National Association of Counties, and the Conference of Mayors.
This amendment further solidifies the constitutionality of H.R. 7
and will assist in the practical implementation of its terms. I urge my
colleagues to support it.
Mr. Conyers. A friendly inquiry, Mr. Chairman.
Chairman Sensenbrenner. The gentleman will state his
friendly inquiry.
Mr. Conyers. This sounds like a substitute amendment. It
has all the earmarks of it, but it's called an amendment. So
what's your response to my friendly inquiry?
Chairman Sensenbrenner. The answer is that it was not
offered as a substitute, and the Chair will stipulate that the
inquiry was friendly.
Mr. Conyers. Okay. Thank you so much.
Mr. Nadler. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from New York, for
what purpose do you seek recognition?
Mr. Nadler. I have two questions. I have a memo here from
Americans United for Separation of Church and State, which make
a couple of comments. I want to ask for your comment on their
comments, whether----
Chairman Sensenbrenner. I have not seen the memo, but go
ahead.
Mr. Nadler. I'll read it. It's only a paragraph. It says:
``The new version'', meaning the substitute, ``leaves language
intact that would allow for employment discrimination based on
religious practices, tenets or teachings. The new H.R. 7
extends the title VII exemption, allowing religious-based
employment discrimination to taxpayer-funded programs under
charitable choice. If this exemption is extended in this way,
it will result in the religious practices discrimination that
is supposedly being stricken. The courts have recognized that
institutions eligible for this exemption may discriminate in
employment based on religious tenets and teachings in addition
to simply refusing to hire someone of a certain religion.''
In other words, under this--even under this changed H.R. 7,
a publicly-funded program could discriminate in employment
against an applicant or employee if they are, for example,
unmarried and pregnant, divorced, gay or lesbian, or engaged in
any other activity that violates the tenets and teachings of
the group's religion.
My question is the following. A, does this correctly state
what--what the bill as amended does?
Chairman Sensenbrenner. No.
Mr. Nadler. And second--okay. And second, my understanding
of the current law is that a church or other sectarian
institution quite properly can discriminate on the basis of
religion in its own religious officials, ministers, deacons and
so forth, but that if you want to have a publicly-funded
program, you cannot discriminate on the basis of religion in
who maintains the soup kitchen, for example, and that this bill
would allow that to happen. Is that--well, first of all, you
just said, in what way is this description incorrect, and
second, is my second question correct?
Chairman Sensenbrenner. The description that you have read
to me--and again, I do not have it in writing in front of me
and I have not seen it--seems to indicate that the amendment
that I have offered to this bill somehow either reduces civil
rights protections to people who are seeking employment, or
expands the exemption that was contained in title VII from the
time it was initially enacted by Congress. That is not what the
amendment does. The amendment keeps title VII exactly the way
it is as it is applied to the organizations that would be
qualified for grants under this bill.
Mr. Nadler. But does the tenets and--doesn't the tenets and
teachings provision extend the exemption in title VII beyond
where it was?
Chairman Sensenbrenner. Well, you know, that would depend
upon how the courts, you know, interpreted religious
discrimination. You know, it is obvious that the original
purpose of title VII was to protect a religious institution
from a suit if they refused to hire as a clergy person someone
not of their denomination, but it has been--that exemption has
been expanded in further enactments by the Congress. Most
recently, the 1996 Welfare Reform Law, that provided a
religious institution that type of exemption from the
antidiscrimination laws in hiring and employment.
Mr. Nadler. Thank you. Let me just suggest that--let me
just make one comment. A lot of comment on this bill has been
saying that, well, this doesn't change in certain respects what
was done in the charitable choice provisions or the faith-based
provisions of the Welfare Reform Act of 1996, it simply extends
it into other program areas. I simply want to comment that at
the time the Welfare Reform Bill was passed, there was a lot of
debate about the Welfare Reform Bill, there was almost no
debate about the charitable choice provision in the Welfare
Reform Bill. It was just included, an omnibus bill, and some of
us believe that that was a very wrong thing to do at that
point, and it will be equally wrong to extend it. Yield back.
Mr. Chabot. Mr. Chairman. Will you yield for a question,
Mr. Chairman?
Chairman Sensenbrenner. For what purpose does the gentleman
from Ohio seek recognition?
Mr. Chabot. Move to strike the last word.
Chairman Sensenbrenner. The gentleman's recognized for 5
minutes.
Mr. Chabot. Thank you, Mr. Chairman.
I rise in strong support of this amendment, and I'd like to
commend President Bush for his leadership on this critical
issue, and I applaud the President and Chairman Sensenbrenner,
and Representatives J.C. Watts and Tony Hall for their good
work in moving this legislation forward today.
Charitable choice proposals have received bipartisan
backing in the past. I offer the words of former Vice President
Al Gore, who strongly supported expanding charitable choice
during his presidential campaign. In a major address to the
Salvation Army, Mr. Gore couldn't have summarized the purposes
of H.R. 7 and its provisions under this amendment more
succinctly. In that address he stated, and I quote: ``The men
and women who work in faith-based organizations are driven by
their spiritual commitment. They have sustained the drug
addicted, the mentally ill and the homeless. They have trained
them, educated them, cared for them. Most of all, they have
done what government can never do, they have loved them.''
Unquote.
After referring to the charitable choice provisions in the
1996 Welfare Reform Act, Mr. Gore continued, quote: ``As long
as there is always a secular alternative for anyone who wants
one, and as long as no one is required to participate in
religious observances as a condition for receiving services,
faith-based organizations can provide jobs and job training,
counseling and mentoring, food and basic medical care. They can
do so with public funds, and without having to alter the
religious character that is so often the key to their
effectiveness.'' Unquote.
That is precisely what H.R. 7 does. Proposed Subsection (f)
guarantees a beneficiary an alternative to which they have no
religious objection. Proposed Subsection (i) states clearly
that if a religious organization offers religious instruction
or worship, a beneficiary must engage in it voluntarily and
separate and apart from the federally-funded program. And
proposed Subsection (e) does just what Mr. Gore correctly
prescribes, it allows churches to remain churches, even when
they apply for and administer social service programs. And it
does so in the same words used in the 1996 Welfare Reform Act,
which Mr. Gore referred to explicitly and approvingly in his
speech. Indeed, it was President Clinton who signed those same
words into law.
I also offer the words of civil rights leader Rosa Parks in
support of the amendment's proposed section (e). In endorsing
H.R. 7 she stated it would reduce, quote, ``discriminatory
barriers currently suffered by the many grass roots churches
who are unable to access funding for education and social
welfare programs.'' Unquote. Of course for a church to be
protected from discriminatory barriers that lie between it and
funds for social service programs, it must be free to remain a
church when it applies for such funds, and retain its current
exemption from title VII.
That is precisely what this amendment does. Under this
proposed amendment, H.R. 7 is constitutionally airtight. We
even have a statement to that effect from the Fourth Circuit
Court of Appeals, which just yesterday held that the
Constitution allows the government to provide direct aid to a
religious organization without having to resort to an
examination of whether that organization is pervasively
sectarian or not. The court held that as long as there are
protections in place prohibiting Federal funds from being used
for proselytizing activities, a faith-based organization must
not be presumed to be incapable of following the rules against
using government funds for worship activities, and on that
basis, redlined from government programs. H.R. 7 explicitly
prohibits the use of Federal funds for sectarian worship,
instruction or proselytizing activities, just as the program
upheld by the Fourth Circuit did in that case just yesterday.
This amendment will make H.R. 7 even clearer on this point
by adding language stating that if the religious organization
offers such an activity, it shall be voluntary for the
individuals receiving services and offered separate from the
program funded under this subpart.
To see how the provision operates, we need only to look at
how it works in the charitable choice program run by the
Reverend Donna Jones of North Philadelphia, whose church runs a
welfare-to-work program there. She testified before the
Subcommittee on the Constitution and described how teachers in
the program conduct readiness-to-work classes in the church
basement week days, pursuant to a government grant. During a
free time period, the pastor of the church may hold a voluntary
Bible study in her office up on the ground floor. The sectarian
instruction is therefore privately funded and separated in both
time and location from the welfare-to-work classes.
Summing up, the amendment stands solidly within the four
corners of the Constitution, and it opens wide the door to
faith-based organizations wanting to apply for Federal funds to
help pay the heating bills in shelters for women victims of
domestic violence, to help pay for training materials teaching
basic work skills, and to help them feed the hungry in soup
kitchens. I urge my colleagues to join in supporting this
important amendment.
Chairman Sensenbrenner. The gentleman's time has expired.
For what purpose the gentleman from California seek
recognition?
Mr. Berman. Move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Berman. Mr. Chairman, as I struggle with this issue,
I'd like to ask a question regarding your manager's amendment.
Both Mr. Chabot and you have made reference to the protection
for the recipient of assistance to, if he or she has an
objection to the religious character of the referral, to obtain
admission into a secular alternative. But the base bill on H.R.
7, on page 15, speaks of that as an alternative that is
accessible to the individual, and--I'm sorry. The base bill,
H.R. 7 says that it is an alternative, including a non-
religious alternative that is accessible to the individual,
with the words ``including a non-religious alternative.'' The
manager's amendment says, ``In an alternative that is
accessible to the individual and unobjectionable to the
individual on religious grounds.''
And I'm curious about why the wording was changed. It
leaves at least an implication that a secular alternative, a
non-religious alternative does not need to be available and----
Chairman Sensenbrenner. Would the gentleman yield?
Mr. Berman. I'd be happy to.
Chairman Sensenbrenner. The way this is worded is that if
the beneficiary demands a secular alternative, they get it, you
know, assuming there are no religious alternatives that are
unobjectionable to the individual on religious grounds.
Mr. Berman. But, again, what's the purpose of deleting the
phrase ``including a non-religious alternative,'' a way of
making clear that that is the case?
Chairman Sensenbrenner. If the gentleman will further
yield.
Mr. Berman. Yes.
Chairman Sensenbrenner. It was tightening up the language
with exactly the same effect. The determination on what type of
a program is unobjectionable to the individual on religious
grounds rests with the individual, and this was a tightening up
of the language to further empower individuals to make their
decision rather than having it being made by the government
either as a matter of law or otherwise. The fact is, is that if
there is no religious alternative that is unobjectionable on
religious grounds, then a secular alternative must be provided.
Mr. Green. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from California has
the time.
Mr. Berman. I'm sorry. I yield.
Chairman Sensenbrenner. For what purpose the gentleman from
Wisconsin, Mr. Green, seek recognition?
Mr. Green. Move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Green. Thank you, Mr. Chairman.
I'd like to commend the authors of the underlying
legislation, but I guess more to the point for where we are,
commend the Chairman for his thoughtful amendment. As the
Chairman knows, over the last number of days, I am one of many
who have tried to look carefully at many of the issues that are
raised by H.R. 7. These are sensitive and weighty issues that
are before us. And those who are concerned about the larger
implications of the legislation we take up today, should be. We
should tread carefully. We should tread sensitively. But, Mr.
Chairman, as I take a look at your amendment, and review it
carefully, I believe that you have done just that. I believe
that you have done a great service to this legislation by using
accepted standards and constitutionally settled principles to
make sure that religious freedom is protected, and that some of
the concerns which have been already expressed, are addressed
fairly, honestly, and again, in a settled manner.
I think that those of us who come from States like
Wisconsin--and Wisconsin is known for its progressive tradition
in the area of education reform and health care reform and
welfare reform--we've seen what the community of faith can do
in its delivery of services. We see the tremendous potential
that is there when we utilize community leaders, when we turn
to what is working, when we turn to those unsung heroes in
neighborhoods all across this country. I believe that H.R. 7
will help us unleash the great potential of those community
leaders, and I'm convinced that your amendment that you bring
forward today will ensure that we do it in a way that is
sensitive to the larger issues that have been raised. So----
Mr. Gekas. Would the gentleman yield?
Mr. Green. Mr. Chairman, once again I commend you for your
amendment, and encourage my colleagues to adopt the amendment.
Mr. Gekas. Would the gentleman yield for a moment?
Mr. Green. Yes, I will yield.
Mr. Gekas. The gentleman will recall that he and I had an
extensive consultation on the contents of the present
legislation, and the gentleman, I must say, went a long way in
convincing me that some of my concerns about the accommodation
to cults, which have no good purpose in most instances, and
might be accommodated by this legislation. The gentleman, as I
say, convinced me that the provisions here would prevent such
an accommodation. Is he willing to confirm that?
Mr. Green. I certainly am. I believe we had that discussion
as we were racing off to a vote. I believe that those who look
carefully at this legislation and will look at the actual
language and the protections that have been enshrined and the
fact that this legislation is about opening up opportunities
for groups to provide services that are currently being
provided--we're not launching new services or programs here--
will realize that these types of opportunities are probably not
attractive to the vast majority of organizations that are out
there because we have a number of accountability provisions in
here, we have tough standards. Any organization which is
applying here to provide services has to demonstrate that they
can provide these services in a verifiable way. They have to
agree to Generally Accepted Accounting Principles. I believe
that there won't be that many organizations, especially early
on, that will embrace these opportunities, but those that do, I
think will go a long way towards shaping lives in communities
and neighborhoods, so I am satisfied, particularly with the
Chairman's mark, that we have addressed those concerns.
Ms. Waters. Would the gentleman yield?
Mr. Green. I would be happy to yield what little time I
have left.
Ms. Waters. I was interested in the question that was
raised by Mr. Gekas. He specifically asked you what would
prevent cults, religious cults, from participating in this
legislation. And I was listening very carefully to your answer,
and your answer did not say that they could not. You suggested
that maybe they won't want to do that because of accountability
standards that you are alluding to that are in the bill that I
don't see. Would you agree that any religious organization can
participate because the bill specifically does not allow
discrimination against any religious organization. Would you
agree?
Mr. Chabot. Will the gentleman yield?
Mr. Green. The gentleman would be happy to yield.
Mr. Chabot. Thank you for yielding. You don't have much
time left, but the bottom line is, is that those agencies----
Chairman Sensenbrenner. Without objection, the gentleman
from Wisconsin will be given 2 additional minutes.
Mr. Chabot. Thank the gentleman. If you'll continue to
yield.
This is one of the items that's been brought up for many of
the folks that are opposed to the whole faith-based initiative.
The bottom line is any of these organizations or so-called
cults are free to try to get contracts to serve the public.
What will ultimately be the determinative factor is what group,
what organization can best provides services to the people at
the most efficient cost. And so that's the bottom line answer.
So anybody can try to compete for the available dollars out
there, but what's going to have to be looked at is who can
provide the services best. And they can look at track records,
for example, of some of the organizations, what they've done in
the past.
Mr. Goodlatte. Would the gentleman yield?
Ms. Waters. Will the gentleman yield for a question?
Mr. Goodlatte. Would the gentleman yield?
Ms. Waters. Would the gentleman yield for a question?
Mr. Green. I would yield time to Mr. Goodlatte.
Mr. Goodlatte. I thank you, and I'll be very brief, but I
would ask the gentleman from Ohio, is it not true that the same
complaint that the gentlewoman from California raises exists in
the secular society as well, that there are today secular
organizations that compete for funds that are of extreme
natures or may be offensive to people. They simply aren't of a
religious sort. And they're allowed to compete for these funds
today. I don't know why we should draw a discriminatory line
between religious and non-religious organizations.
Ms. Waters. Will the gentleman yield? That does not speak
to my question. Would the gentleman yield?
Mr. Green. No. Actually, I would like to reclaim my time
and try to answer the question that was first posed. First off,
let's remember, as my colleague from Virginia has pointed out,
that in current law, such groups could compete for dollars
right now under certain programs. And there's an interesting
study out that's referred to I think in some of our materials,
which shows that the legitimate fear that many have raised in
the past about such organizations entering into these programs
has been completely unfounded.
The reason why is charitable choice is not a set-aside, it
is not a pot of money which is going to enrich any group.
Chairman Sensenbrenner. The gentleman's time has once again
expired.
Mr. Frank. Mr. Chairman.
Chairman Sensenbrenner. For what purpose the gentleman from
Massachusetts seek recognition?
Mr. Frank. To strike the last word, Mr. Chairman.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Frank. First, the gentleman's question I think has not
yet been answered. And I was struck by what seems to me an
inconsistency. When the Nation of Islam was hired by many
housing authorities some years ago to patrol the housing
authorities--I think Baltimore was one and some others--to
provide security, a number of people, some of whom are strong
supporters--not necessarily on this Committee, but in the
Congress--of this bill, were very upset, and indeed, political
pressure was brought successfully I think on HUD to disallow
the Nation of Islam from providing these services because some
people thought it was a religious cult and they disagree very
much with it. My guess it--I never went to any of the housing
authorities to do an on-spot inspection--my guess is, judged by
results, they probably did a very good job of keeping order in
those housing authorities. And I think we ought to note to
those who objected to the Nation of Islam being involved
before, that this is the sort of legislation that will I think
bring about their return, judged solely on results, and
objections that people might have to various aspects of the way
the Nation of Islam worships or what their theology is would be
irrelevant. And I think that's just----
Mr. Nadler. Would the gentleman yield?
Mr. Frank. Well, let me first--I want to ask--I'll yield
briefly.
Mr. Nadler. Just one observation. The grounds for which the
Nation of Islam was evicted, in effect, from those contracts,
was that they discriminated on the basis of religion in who
they hired as security guards.
Mr. Frank. And that would now no longer be the case.
Mr. Nadler. That would no longer be----
Ms. Waters. Will the gentleman yield?
Mr. Frank. Let me just get to my other point here if I can,
and then I'll get back to this. Because I wanted to ask the
Chairman, and I appreciate his effort to try and make some
improvements. On the bottom of page 17 there's a provision that
may have been in the original one, that says, ``No funds shall
be expended for sectarian instruction, worship'', or a word no
one really has an easy time pronouncing--``proselytization.''
Now, I appreciate that, but here's my question. What if the
organization that gets the money believes that a religious
message is inherent in providing the service? What if people
believe that you cannot get people to get off drugs or to stop
violent behavior, or to stop imbibing alcohol excessively or
doing other things? What if inherently in their message is, you
do this by becoming a Christian, or a better Christian, or a
better Muslim or a better Jew? Is that allowed under the bill?
Chairman Sensenbrenner. Will the gentleman yield?
Mr. Frank. Yes.
Chairman Sensenbrenner. The answer to the question is no it
is not, and those organizations would not be eligible for
funding under H.R. 7.
Mr. Frank. Well, I appreciate that and I think that's a
very important point to make. That is, you could not--and I'm
told there are organizations that do this--so in addition to
strictly trying to convert people, if in fact you sincerely
believed that the way to cure the problem that had brought
people to you, the way to inculcate in them better behavior,
involved inherently a religious message, that could not be
funded under this program; it would have to be done entirely
separately?
Chairman Sensenbrenner. Would the gentleman yield further?
The gentleman's conclusion is correct. It is up to the
religious organization to make a determination, if they can
separate out their religious mission from their social services
mission. If they can do that, they're eligible under H.R. 7.
But if they can't do that, then they're not.
Mr. Frank. And I appreciate the gentleman saying that,
because again I want to make it clear. What we're saying is if
the fact that they may believe that the social service mission
cannot be accomplished in a non-religious context, that would
make that ineligible for Federal funding. They're free to do
that in other ways, but they could not get Federal funding to
do that; is that correct?
Chairman Sensenbrenner. If the gentleman would yield
further. That is what the language of the amendment prohibits
doing, and that is, is that if the program, under H.R. 7, is
funded, the Federal funds cannot be used in any manner
whatsoever for sectarian instruction, worship or
proselytization, and those functions must be privately funded
and they are voluntary, and the clients or beneficiaries have
the opportunity to opt out or to seek another alternative.
Mr. Frank. Well, let me say, I assume this would mean
though that you don't kind of enroll in the program, and then
when it gets to the religious part, you get out; you are
entitled to a totally separate program?
Chairman Sensenbrenner. That is correct.
Mr. Frank. And it's not an in and out kind of----
Chairman Sensenbrenner. That is correct, and the
gentleman's time has expired. And let me find out how many
votes we're going to have.
There will be two votes on amendments, recommittal after 10
minutes debate, and final passage. The Committee is recess
until 1:30. Please be prompt because we'll start in right away.
[Whereupon, at 11:51 a.m., the Committee recessed, to
reconvene at 1:30 p.m., the same day.]
***AFTERNOON SESSION***
Chairman Sensenbrenner. The Committee will be in order.
Pending at the time the Committee recessed was an amendment
to the bill by the Chairman.
Mr. Scott. Mr. Chairman.
Chairman Sensenbrenner. For what purpose the gentleman from
Virginia seek recognition?
Mr. Scott. Move to strike the last word.
Chairman Sensenbrenner. The gentleman's recognized for 5
minutes.
Mr. Scott. And before that, a parliamentary inquiry, Mr.
Chairman.
Chairman Sensenbrenner. State your inquiry.
Mr. Scott. When your amendment was introduced, was it
introduced as an amendment or an amendment and unanimous
consent to consider it as the original text for the purposes of
amendment?
Chairman Sensenbrenner. It was introduced as an amendment.
The base bill is what is amendable.
Mr. Scott. And parliamentary inquiry?
Chairman Sensenbrenner. State your inquiry.
Mr. Scott. So if there are amendments to the manager's
amendment, they should be introduced before it's adopted?
Chairman Sensenbrenner. That's correct.
And with that happy note, this is a vote on a rule. Is
there a vote on the previous question? Okay. I would ask the
Members to come back promptly after voting, and the Committee
stands in recess. The gentleman from Virginia, Mr. Scott, will
be first to be recognized, so he should come back first.
[Laughter.]
Chairman Sensenbrenner. The Committee stands recessed.
[Recess]
Chairman Sensenbrenner. The Committee will be in order.
Pending at the time of the recess was an amendment to the
bill offered by the Chairman. Before recognizing the gentleman
from Virginia, let me reiterate my announcement of this
morning, that the Chair intends not to adjourn the Committee
until we vote to report the bill one way or the other,
notwithstanding the announcement that the House will suspend
its work on the Agriculture Appropriations Committee between
6:00 and 7:00 p.m.
For what purpose does the gentleman from Virginia seek
recognition?
Mr. Scott. Mr. Chairman, move to strike the last word.
Chairman Sensenbrenner. The gentleman's recognized for 5
minutes.
Mr. Scott. Mr. Chairman, for several weeks I've been asking
the question about various versions of charitable choice as to
whether or not under the versions that we would finally get to
vote on, whether or not you can proselytize during the program
or not. We heard--we read reports that Mr. DeJulio, the
Director of the Faith-Based Office in the White House--we heard
quotes from him that said that pervasively sectarian programs
could in fact be funded. We heard from the chief sponsor of the
bill, that religion is a methodology, and therefore, obviously,
that's what you were paying for. We've heard references to
Democratic leaders as to what their position is on this. The
Democratic platform that was adopted by the Democratic
Convention last summer, supported faith-based funding with the
provision that no proselytization should be funded, and no
funds should be used in a discriminatory manner.
Mr. Chairman, your manager's amendment finally answers the
question one way or another, and says that there shall be no
proselytization during the program. It is consistent with the
views expressed by the Department of Justice, where they said
there should be no proselytization paid for by Federal money,
nor volunteers or any other way during the government sponsored
program. In fact, Mr. Chairman, the manager's amendment, in
terms of proselytization is a restatement of present law
without charitable choice. Any program that can get funded
under the manager's amendment can also be funded now with one
exception. And that is organizations that do not want to comply
with civil rights laws. The requirements that symbols can be
there, under the manager's amendment, is a question of
constitutional implications. If the Supreme Court requires them
to take--them to be taken down, then the statute we're adopting
can't cure that. If the Supreme Court does not allow the
symbols to be taken down, then of course, you can do it under
present law.
What we have right now is a question of whether or not
organizations can discriminate, and that's really all that's
left in the bill. The main effect, the main effect, after we've
gone through the constitutional process of which religion will
get funded and which will not, the main effect is that
organizations receiving Federal funds can discriminate. The
sponsors of federally-funded programs under the bill can
discriminate based on religion, and that's really what this
debate is all about, nothing more. The extent to whether
teachings and tenets are also covered by the right to
discriminate is a technical question that we can consider, but
after you've stripped it to its bare essentials, the only thing
the bill allows not that's not allowed under present law, is
the right to discriminate based on religion.
We will have amendments that will focus on this simple
question as to whether the sponsor of a federally-funded
program can discriminate based on religion for the first time
in decades, so that we will consider that question as we
consider amendments.
Thank you, Mr. Chairman. I yield back the balance of my
time.
Ms. Lofgren. Mr. Chairman.
Chairman Sensenbrenner. Are there amendments?
Ms. Lofgren. Mr. Chairman?
Chairman Sensenbrenner. For what purpose does the
gentlewoman from California seek recognition?
Ms. Lofgren. To strike the last word.
Chairman Sensenbrenner. The gentlewoman's recognized for 5
minutes.
Ms. Lofgren. I wanted to comment briefly on the discussion
that was had before the lunch break, which has to do with
whether or not cults could be funded under this act. And I
guess in a way I'm a little bit reluctant to use the word
``cult'' because in some cases, one person's cult is another
person's faith. But in looking at this, I think we are clearly
going to be opening ourselves up to a situation that I think
the proponents of this measure do not desire, and perhaps have
not fully envisioned.
In thinking about religions that are not the majority
religion in the United States, under this act and with the
manager's--with the Chairman's amendment, we note that you
cannot require a faith-based group to remove their religious
scriptures, arts, icons and the like, and the only way a
recipient of the services can get out of being served by the
faith-based group is if they have objections to the religious
character of the organization. It's not clear to me that--and
maybe this is a question for the Chairman--let's say I'm
receiving child care as part of the federally-funded welfare
program, and in California, a large California county, it's the
wickens who are providing the child care, which is actually not
an improbable situation in some parts of the State. Can I
require that a separate child care provider be established
because I don't like the wickens? And if then I'm sent to the
Catholics, can I require that still another child care be
provided until I finally get to the Lutherans, which is what I
am? Is that--would that be the impact of this amendment?
Chairman Sensenbrenner. The answer to your question is no.
Anybody who applies for--to receive funds under this program,
either directly or indirectly, will have to adhere to all of
the qualifications of the program, many of which already exist.
We're not creating new social services programs in this bill,
but what we are doing is opening up the eligibility to faith-
based organizations to provide those types of social services.
Ms. Lofgren. Well, reclaiming----
Chairman Sensenbrenner. The opt out and choice provisions
that are contained in the manager's amendment, you know, make
it clear that nobody will be forced to go into a faith-based
program, and while it is not stated expressly, if someone
objects to all faith-based programs, there has to be a secular
alternative.
Now, you know, to answer you question, if you don't like
denomination 1, you can object to that, and then go to 2 or 3
or 4, until you finally get a denomination that is of your
choosing. There's nothing in this legislation that requires a
local government to do that. If the Lutherans don't want to put
on one of these programs because somebody insists upon going to
a Lutheran program, the Lutherans don't have to put on one of
these programs.
Ms. Lofgren. No, that's--if I may, that is clear. But I
guess what I'm--what I'm struggling with is there are a whole--
I mean I probably have more Buddhists than Baptists in my
district, and there are some people who don't believe in what
the Buddhists believe, and they are a likely provider of
services. And it's not clear to me that we will avoid a result
where people who have one faith are required to--because
there's a----
Chairman Sensenbrenner. The gentlewoman yield?
Ms. Lofgren. Yes, I will.
Chairman Sensenbrenner. Under this bill there is no
requirement that somebody who objects to receiving secular
social services in a Buddhist-owned facility and sponsored by a
Buddhist congregation or Buddhist faith-based organization, or
however they are organized, to have to enroll in that social
services program. There has to be, under H.R. 7 and the
Chairman's amendment, an alternative that is non-objectionable
to the individual seeking the social services.
Ms. Lofgren. All right. So if I am understanding the
Chairman correctly, every--I was in local government for a lot
longer than I've been in Congress, and we actually funded a lot
of social services with faith-based groups, I mean from the
Catholic Charities, the Cathedral of Faith and many, many
others. We also had secular programs that we funded for the
same activities. So if you're a local government, you better
make sure that you have a non-faith-based organization, or else
any one person can throw chaos into your program by objecting,
and then you would fail to have an alternative.
I have problems with this in many respects, but I guess one
of the overlying things I fail to understand is why, in
practically every county of this country we're already funding
services through faith-based groups, we need to do this. I
mean, but I see my time has expired. And I thank the Chairman
for allowing me to strike the last word.
Mr. Schiff. Mr. Chairman.
Chairman Sensenbrenner. The gentleman from California, Mr.
Schiff. For what purpose do you seek recognition?
Mr. Schiff. Move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Schiff. I'd like to speak briefly to the premise of
direct government funding of churches and synagogues and other
religious institutions.
The separation of church and state was designed out of a
desire to avoid the excessive entanglement for two reasons.
One, it was to protect the people from the government's use of
its coercive power for religious purposes. And second, it was
designed to protect people's free exercise of religion by
guarding churches from unwarranted government intrusion. Direct
funding of religious institutions, whether characterized under
the beneficent sounding, wonderfully alliterative expression,
charitable choice, does not serve either priority of the
founders. In fact, I believe, although well meaning, it
undermines both church and state, and in so doing, undermines
our basic freedoms.
How does it do this? How does it undermine the State?
Fundamentally, I believe it precludes real accountability in
the delivery of services. The principle of greater funding with
accountability that we all subscribe to is sacrificed. Would
this Committee or any Committee call in the GAO to audit,
investigate the performance of the Catholic Church in
delivering services, or the Mormon Temple or a Jewish synagogue
or any other religious institution, there would be the most
natural sensitivity not to pry, a sensitivity that does not
exist in the scrutiny we would so willingly permit of a
doctor's billings under Medicare or a military contractor, or
any other secular provision of services in exchange for Federal
funds.
But how does it undermine the church? And I think this is
the more serious concern. Fundamentally, I believe it would
compromise the mission of a religious organization in an effort
to get Federal dollars. Mr. Frank's earlier point that this
would preclude a church, for example, from arguing that a
belief in the Lord is essential to progress in a person's life
that is being served, whereas the argument that these
objectives can be met without a belief in God would be
federally funded, basically tells a religious organization that
as long as they do not espouse a belief in the Lord as a
component of recovery, it will get Federal funding. Is this
really what we wish to do? Do we wish to turn religious
institutions into vendors of government programs? Do we want
them competing with each other for grants and a
politicalization of religious institutions that would accompany
that? Would it be appropriate for Members of Congress to write
in support of one church's grant application or against
another? Which churches will qualify for funding? What litmus
test will be given? Do they need to be conventional? Can they
be unconventional?
I want to congratulate the administration and the Chair for
the creative thinking in dealing with new ways of wrestling
with old challenges, but sometimes, often in fact, the founders
get it right. In the establishment clause it says ``Congress
shall make no law respecting an establishment of religion or
prohibiting the free exercise thereof.'' No law respecting an
establishment of religion. We are talking about direct
government funding of religion. Do we really believe that
Jefferson or Madison would have countenanced direct government
funding of churches and synagogues? Neither Jefferson nor
Madison was hostile to religion. Both were protective of
religion, and because protective, they would have believed this
idea ill conceived. I urge a no vote.
Chairman Sensenbrenner. Are there amendments? The gentleman
from Virginia, Mr. Scott.
Mr. Scott. Mr. Chairman, I have an amendment at the desk,
Scott No. 1.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to the amendment to H.R. 7, offered by
Mr. Scott, Mr. Conyers, Mr. Nadler, Mr. Frank, Ms. Jackson Lee,
Ms. Waters, Ms. Baldwin and Mr. Watt.
Page 13, strike line 13 and all that follows through line
23 on page 13. Redesignate accordingly.
[The amendment follows:]
Chairman Sensenbrenner. The gentleman from Virginia is
recognized for 5 minutes in support of his amendment.
Mr. Scott. Mr. Chairman, it is ironic that we would
consider H.R. 7 just 2 days after marking the 60th year
anniversary of President Roosevelt's signing of Executive Order
8802. Mr. Chairman, that Executive Order provides in part,
``whereas there is evidence that available or needed workers
have been barred from employment in industries engaged in
defense production solely because of considerations of race,
creed, color or national origin, to the detriment of workers'
morale and of national unity'', and goes on to order, ``all
contracting agencies of the government of the United States
shall include in all defense contracts hereafter, negotiated by
them, a provision obligating the contractor not to discriminate
against any worker because of race, creed, color or national
origin.''
Mr. Chairman, today we witnessed the erosion of 60 years of
civil rights law. This amendment that I'm offering strikes a
provision in the bill that allows sponsors of Federal programs
to discriminate on the basis of religion, and specifically
overrides any contradictory statutes. Religiously-affiliated
organizations, including Catholic Charities, Lutheran Services,
Jewish Federations, and a vast array of smaller faith-based
organizations, now sponsor government programs, and contrary to
President Bush's recent assertions, I am unaware of anyone who
opposes these organizations operating public programs and
providing services. They are funded like all other private
organizations are funded. They are prohibited from using
taxpayer money to advance their religious beliefs, and they are
subject to civil rights laws. In fact, the bill before us
restates the present law with the exception of the application
of civil rights laws. Any program that can get funds under the
manager's amendment can get money now, except those who refuse
to comply with civil rights laws.
Now, there was a time when some Americans, because of their
religion, were not considered qualified for certain jobs. In
fact, before 1960 it was thought that a Catholic could not be
elected President. And before the civil rights laws of the
1960's, people of certain religions routinely suffered
invidious discrimination when they sought employment. President
Roosevelt's Executive Order 60 years ago, and the civil rights
laws of the 1960's, outlawed schemes which allowed job
applicants to be rejected solely because of their religious
beliefs.
Now, some of us are frankly shocked that we would even have
a debate as to whether sponsors of Federal programs can
discriminate in hiring. But then we remember that the passage
of the civil rights laws of the 1960's was not unanimous, and
it is clear that we're using charitable choice to re-debate the
passage of basic anti-discrimination laws. Now, I believe that
publicly-funded employment discrimination was wrong in the
1940's and 1960's, and it is still wrong.
Now, some have suggested that organizations should be able
to discriminate in employment, to select employees who share
their vision and philosophy. Under current civil rights laws,
you can discriminate against a person based on their views on
the environment, views of abortion or gun control, you can
select staff based on their commitment to serve the poor or
whether you think they have compassion to help others kick
drugs. You can discriminate based on a criminal record or
credit record or educational achievement. But because of our
sorry history of discrimination against certain Americans, we
had to establish protected classes, and under present law you
cannot discriminate against an individual based on race, sex,
national origin or religion.
Now religious organizations were given an exemption to
consider religion and hiring with church funds. We have not--
but we have not allowed sponsors of federally-funded programs
to reject applicants for jobs paid for with Federal money
solely because of their religion.
Mr. Chairman, charitable choice represents an historic
reversal of decades of progress and civil rights law
enforcement. We established the policy years ago that we should
not discriminate based on religion. The President and the
supporters of charitable choice have promised to invest needed
resources in our inner cities, and they can do so today under
present law. But it is insulting to suggest that they will not
make those investments unless we turn the clock back on our
civil rights.
And I hope, Mr. Chairman, we'll adopt the amendment. Yield
back the balance of my time, Mr. Chairman.
Chairman Sensenbrenner. Gentleman from Ohio, Mr. Chabot.
Mr. Chabot. Thank you, Mr. Chairman.
Chairman Sensenbrenner. You're recognized for 5 minutes.
Mr. Chabot. Thank you. I rise in opposition to this
amendment. This amendment strikes the same language used in the
1996 Welfare Reform Act. It's part of all existing charitable
choice laws now. It would override the title VII exemption. All
we want to do is preserve the status quo. This amendment
proposed to change it. We agree withthe unanimous Supreme Court
that upheld the title VII exemption as written, not as is
proposed under this amendment which would change it. This is a
change in existing law that would upset the balance struck over
the past 30 years.
One of the most important charitable choice principles is
the guarantee of institutional autonomy that allows faith-based
organizations to select staff on a religious basis. H.R. 7
preserves this guarantee, and it's supported by no less a civil
rights leader than Rosa Parks. As I stated before, even Al
Gore, during his campaign, said that, quote, ``Faith-based
organizations can provide jobs and job training, counseling and
mentoring, food and basic medical care. They can do so with
public funds and without having to alter the religious
character that is so often the key to their effectiveness.''
And therefore, I rise in opposition to this amendment.
Yield back the balance of my time.
Mr. Conyers. Mr. Chairman?
Chairman Sensenbrenner. For what purpose gentleman from
Michigan seek recognition? 5 minutes.
Mr. Conyers. Thank you, Mr. Chairman. I rise in support of
the amendment, which I'm proud to add my name behind Mr.
Scott's.
I'll only take a few minutes, Mr. Chairman. But I notice
that our colleague, the gentleman from Texas, Chet Edwards, has
been sitting in the audience for many an hour, and I wonder if
we could allow him to come up and take the vacant seat next to
Mr. Schiff for whatever time he may remain, if there's no
problem with that.
Chairman Sensenbrenner. Without objection, provided he does
not exercise undue influence upon Mr. Schiff. [Laughter.]
Mr. Conyers. Mr. Schiff may be a hopeless case from your
point of view already, Mr. Chairman. I doubt if he'll be able
to do much with Mr. Schiff one way or the other.
But at any rate, ladies and gentlemen, from my perspective,
the his amendment is the key to whether we ought to have a bill
or not. I think we've--I think that we could see our way
through--I hate to use that term that starts with a ``P''
because it's been mispronounced so much, and I've taken
exception to everyone that has mispronounced it, so I'm not
going to even try to do it. But let me point out to you that if
we were to follow the recommendations of the Scott amendment, I
think we would--I think we could all work this out very quickly
in the very short time that's left between now and the time we
go into recess. And for that reason, if not on the great
substantive reasons that I would offer, I ask the generous
consideration of everyone in the Committee, because this--this
is troublesome, and I think this Scott amendment cures it.
And I'd like everyone to know that I've been joined in
support of this by Ms. Rosa Parks, whose name has been raised
more times than anybody else not a Member of the Committee. So
if everybody would think carefully about the words and the
meaning of the Scott amendment, quickly glance at the short
letter of Rosa Parks herself, which I ask unanimous consent to
put in the record at this time.
Chairman Sensenbrenner. Without objection.
[The letter of Ms. Parks follows:]
Mr. Conyers. And I will return my time.
Mr. Hutchinson. Mr. Chairman, Mr. Chairman, Mr. Chairman.
Chairman Sensenbrenner. For what purpose the gentleman from
Arkansas seek recognition?
Mr. Hutchinson. Move to strike the last word.
Chairman Sensenbrenner. The gentleman's recognized for 5
minutes.
Mr. Hutchinson. I want to thank the gentleman from Michigan
for introducing the letter of Rosa Parks. I think that is very
helpful. I read that, and I appreciate that introduction. I
also appreciate the tone of this discussion today. I think this
is one of the most important and fundamental issues that we can
debate in terms of the Constitution and some very important
principles. I have always believed that the government should
not be directing the churches as to what to do, and religious
organizations. And I think to accomplish that goal, you have to
make sure that there's not too much entanglement, there's not a
potential for overreach by the government in terms of what the
churches or religious organizations do.
I look at the amendment that's been offered by the
gentleman from Virginia, and that would delete the protection
of the religious organizations from the exemption that's
already provided in the civil rights law. The--Mr. Chabot, the
Chairman of the Constitution Committee, has referred to the
fact that this exemption was included in the charitable choice
provisions of the Welfare Reform Law. It was also, obviously,
originally provided in the 1964 adoption of the civil rights
laws. And so I see that this is simply preserving the status
quo that has been recognized in our civil rights laws.
It's important to note, in my judgment, that the paragraph
that the amendment designs to remove, provides that the
religious organization exemption regarding employment practices
shall not be affected by its participation in these programs.
It only applies to employment practices, which is the exemption
that was already existing under the civil rights laws.
Mr. Weiner. Will the gentleman yield?
Mr. Hutchinson. Let me go ahead and finish here if I might,
then I'd be happy to yield.
And then there is a very important section that follows,
that nothing in this section alters the duty of a religious
organization to comply with the nondiscrimination provisions in
title VI of the Civil Rights Act, which prohibits
discrimination on the basis of race, color and national origin.
I think what the Chairman has done in working very hard with
the administration and others, is to craft a good balance in
preserving the autonomy of the religious organization, but also
assuring the preservation of a status quo in regard to our
civil rights protections, and part of that protection is to
allow the religious exemption in regard to employment
practices. Otherwise, you'll be altering the nature of the
religious organization itself.
And I think that the Supreme Court's review of this is
important. It's my understanding that they did review this
similar type of exemption from the Welfare Reform Law and
upheld that, and that it's a good balance that has been
maintained. I think it is a very tough question that we're
addressing, but I think that what the Chairman has done and
others have done is to maintain that balance. And so I would--I
believe it's appropriate that the amendment that's being
offered be rejected. I'd be happy to yield.
Mr. Weiner. Mr. Hutchinson, yeah, I am deeply divided on
this bill, and one of the four things I made note of that I was
interested in seeing if we could have corrected is something
that is--I notice in your response, and Mr. Chabot's also,
there's no addressing of the merits of being able to
discriminate based on religion. Later on in the bill it talks
about--it talks about the fact that these people are not going
to be doing sectarian instruction. They aren't going to be
involved in worship. They aren't going to be proselytizing. A
great deal of energy has been put in by the sponsors of this to
say that those things will not be happening.
Can you give me a real-life example about why it would be
desirable for a church to be able to run a soup kitchen, hire
someone--discriminate against someone in hiring based on their
religion or their race? Why would you want that? Why not take
that exemption--nothing in this amendment strikes it from the
law. It only strikes it from who would be the beneficiaries of
the assistance.
Mr. Hutchinson. Reclaiming my time.
Mr. Weiner. Certainly.
Mr. Hutchinson. It's very important to note that what you
just cited about discrimination based upon race, that is not
allowed. Clearly, this provision, which is on page 13, says
that nothing in this section alters the duty of a religious
organization to comply with the non-discrimination provisions
in title VI, which prohibits discrimination on the basis of
race.
Mr. Weiner. Well, if you'll forgive me then, well, why
don't you address the part about discriminating against based
on their religion? Why is it desirable to allow them to do that
in this context, since it's a non-religious function they're
performing?
Chairman Sensenbrenner. The gentleman's time has expired.
Mr. Frank. Mr. Chairman.
Chairman Sensenbrenner. For what purpose does the gentleman
from Massachusetts seek recognition?
Mr. Frank. To strike the requisite number of words.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Frank. I think the gentleman's amendment is a very
important one. We are talking here, not about altering a
religious organization's structure. We're not remotely
suggesting that you will tell people who they can hire as
members of the clergy or what conditions will be imposed there.
What we are talking about is a religious organization, deciding
voluntarily, in addition to its ongoing religious mission, to
apply for Federal funds to provide a social service.
Now, the Chairman, in a very cogent and clear-cut way,
said, that in doing that, the religious organization may not
inculcate its religion. It can be motivated by its religion.
Obviously, it will be. And that's to the benefit of our
society, that there are people who are religiously motivated to
help others. But the Chairman made it very clear, that insofar
as their accepting the Federal funds--and this is what the
gentleman from New York was alluding to--they will not be
carrying out the religious functions. So then the question is
why should they be able to discriminate, the gentleman from
Arkansas says, and I think that's probably right, they won't be
able to discriminate based on race, but he didn't answer the
question of the gentleman from New York as to why they should
be allowed to discriminate based on religion. So that's the
fundamental question: why should you be allowed to take Federal
money to provide a service which, as the Chairman has pointed
out, will not be religious in its content, it will not be
sectarian, it will not proselytize? Why should you then be able
to say, ``We're not going to hire you if you are not of our
religion?'' That's the question that is unanswered.
There are further questions that we have. There is also
this list, the non-discrimination statutes, that must be
followed. They are the Federal statutes. Some States have
decided to go beyond what the Federal Government has done in
preventing discrimination, and I would ask, because it's not
clear to me, is this preemptive of State employment
discrimination laws other than those which might track the
Federal one? I would yield to anyone who could give me the
answer to that. By specifying the Federal anti-discrimination
laws that apply, does this mean that State anti-discrimination
laws which cover subjects not covered under the Federal law,
would be preempted in effect, and the religious organizations
would not have to apply--follow them? I would yield to anyone
who would answer that.
Chairman Sensenbrenner. Will the gentleman yield?
Mr. Frank. Yes, Mr. Chairman.
Chairman Sensenbrenner. I'll answer the second part of your
question and I'll seek my own time for the first part. The
second part, relative to Federal preemption. Federal law
applies where Federal funds go, and State law does not apply.
If the religious organization accepted State funds, and by
implication, local government funds, then State laws would
apply to them as well.
Mr. Frank. So it would preempt State laws or allow them
to----
Chairman Sensenbrenner. It would allow them to ignore State
laws when Federal--only Federal funds are used, but would not
allow them to ignore State laws when State funds are used.
Mr. Frank. What if there was a mix of Federal funds and
private funds?
Chairman Sensenbrenner. Then they could ignore State laws.
Mr. Frank. That seems to me to be a serious flaw and hardly
consistent with the sporadic States' rights professions that we
hear from the other side. The principle ought not to be that
you can get out of following a State's enactment because you
have accepted some Federal funds, and the Chairman has very
straightforwardly made it clear. If you get some Federal funds
and you have some of your own funds, you might--not might--you
are then allowed to ignore a State law that would otherwise be
binding on you. I do not think we ought to be embodying the
principle that the acceptance of Federal funds somehow then
cancels State law.
There are a number of things. For instance, the States get
highway money from the Federal Government. Does that principal
apply? Should we then say that a State highway department can
ignore its State's own laws with regard--or contractors getting
the State highway money? That, really, frankly, surprises me in
the very radical nature of a repudiation of what the State can
do. In other words, you are in the State and you have set a
policy that there will not be discrimination based on this or
that or the other, other than what the Federal Government does.
And an organization in your State, which decides to do a
program, and it's got 70 percent of its money, and it gets 30
percent of the Federal money, that Federal money now becomes a
license to ignore State anti-discrimination law. If there's a
conflict between the laws, then the Federal would apply, but I
had not previously thought it would be the case that accepting
Federal funds allowed you to violate State law. And I think
that is a very grievous flaw which the amendment would deal
with.
Let me say there's one other question that I had.
Chairman Sensenbrenner. The gentleman's time has expired.
The Chair moves to strike the last word, and recognizes himself
for 5 minutes.
The gentleman from Massachusetts knows that there is no
substantive change in anti-discrimination laws that is proposed
by this bill. The title VII, with its exemption for religious
hiring by religious institutions, is no stronger and no weaker
under H.R. 7 as amended, then it is under the present law.
What the Scott amendment proposes to do is to go beyond the
current law, to go beyond the 1996 Welfare Reform Act similar
provisions, and to apply a test which makes it illegal to
discriminate by religion in hiring.
Now, I will answer the questions from the other side on why
this exemption is necessary. In many cases, the same people
that are hired by the church will perform the social services
activities. There is a prohibition against commingling funds. I
would imagine that they would receive two paychecks based upon
the time they spend in the social services sector versus the
time they spend in the religious sector. Many of the very
effective faith-based religious programs in the social services
area will not be hiring new people, and that is why it is
important that this exemption be maintained as it has been in
the law since 1964, and for that reason I would hope that the
amendment by the gentleman from Virginia would be rejected.
Mr. Frank. Would the gentleman yield?
Chairman Sensenbrenner. And I yield.
Mr. Frank. I thank the Chairman. I would disagree that this
doesn't expand the title VII exemption on this basis. The title
VII exemption, as I understand it, is for religious activities.
But as the Chairman himself said, money can be accepted under
this program for non-religious activities. In fact, the
Chairman's own language says that money----
Chairman Sensenbrenner. Well, reclaiming my time, that
issue was debated and resolved in 1996 with the Welfare Reform
Act, which was signed by President Clinton. And in the last
campaign, the Democratic candidate for President, Al Gore, said
faith-based organizations can provide jobs and job training,
counseling and mentoring, food and basic medical care; they can
do so with public funds and without having to alter the
religious character that is so often the key to their
effectiveness.
Mr. Frank. The gentleman yield?
Chairman Sensenbrenner. Now, part of that religious
character is being able to hire people of one's own religious
denomination. What my amendment to this bill does is very
clearly saying that with the programs that are funded through
H.R. 7, you cannot proselytize or have any type of sectarian
worship or instruction involved in it, but it seems to me that
we don't want to put ourselves in a position of forcing the
Catholic Church to hire a militant atheist for its social
services program, having a Jewish faith-based organization
having to hire an evangelical fundamentalist Protestant, or
having a mainline Protestant denomination having to hire
someone who worships the sun.
Mr. Frank. Will the gentleman yield?
Mr. Scott. Would the gentleman yield?
Chairman Sensenbrenner. I'm happy to yield to the gentleman
from Massachusetts.
Mr. Frank. First, I want to reject the notion of
infallibility, whether it is presidential or vice presidential.
Gore and Clinton can say what they want. It doesn't establish
the merits. I think the gentleman----
Chairman Sensenbrenner. If the gentleman will yield, we
already established in this Committee that President Clinton
was not infallible a couple of years ago.
Mr. Frank. I said that. You've just---- [Laughter.]
Mr. Frank. You've just resurrected him. But the point I
would make is this: the gentleman has been--he says, should a
Jewish organization have to hire an evangelical Christian, for
example? Yeah. I think if you're taking Federal money and
you're doing a non-religious function, yes, it ought not to be
the case that a Jewish organization can refuse to hire an
evangelical Christian or vice versa.
Chairman Sensenbrenner. Reclaiming my time, I believe that
you and I have a philosophical disagreement on whether Federal
law should require the Jewish organization to hire an
evangelical Christian to perform its social services program,
and I yield back the balance of my time.
Mr. Nadler. Would the gentleman yield?
Mr. Scott. Mr. Chairman?
Mr. Nadler. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from New York, Mr.
Nadler.
Mr. Nadler. Thank you, Mr. Chairman. Just one comment.
First of all----
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Nadler. Thank you. It has been stated--the Chairman
said a moment ago, it's been stated several times that this or
that was debated and decided in the Welfare Act of 1996. My
recollection is that the charitable choice provisions in the
Welfare Act of 1996 were placed in that bill with no discussion
whatsoever, no debate on the floor of the House as to anything
to do with the charitable choice, and I don't remember this
Committee debating it or having it in front of us either. Nor
do I think that the Congress in 1996 was infallible, any more
than I think that President Clinton or Vice President Gore were
infallible.
And by the way, this Committee did not establish that the
President was infallible in 1998. We made certain allegations.
The Senate quite properly rejected those allegations.
But stepping that aside---- [Laughter.]
Mr. Green. But putting that aside, the fact is that to
establish in law--and I think it was a real mistake to do so in
1996; it ought to be repealed, and it ought to be not extended
now--to have the notion that a Protestant church or a Catholic
church or a Jewish synagogue can discriminate in employment on
the basis of religion for who's going to ladle out the soup at
the soup kitchen, or who's going to be the doctor if they're
running a medical program. Who's going to be the priest, yes,
that makes sense. If the Catholic church doesn't want to have
women as priests, or the Orthodox Jews don't want to have women
as rabbis, that's their privilege, and certainly that was the
point of the title VII exemption of the Civil Rights Act. But
when it comes to non-religious functions with Federal money, if
the Salvation Army wants to proselytize before you can have
your soup at the soup kitchen, that's their privilege as long
as they're not using Federal money. And if they want to
discriminate, that's not their privilege, because it's against
the Civil Rights laws, and we shouldn't be carving out an
exception for churches or anybody else as long as it uses
Federal money and as long as it's not for religious function.
Mr. Frank. The gentleman yield?
Mr. Nadler. I yield to the gentleman from Massachusetts.
Mr. Frank. I thank the gentleman. I am really astounded
that apparently one of the merits of this is that we're going
to validate the right of one religion to refuse to hire
adherence of another religion for non-religious purposes. I
mean I had not realized that the model that we were using in
this was the inter-religious relationships of the Ukraine,
because that seems to be what we're doing. [Laughter.]
Mr. Frank. We are promoting religious discrimination, that
the Jews shouldn't hire the Catholics, and the Catholics
shouldn't hire the Protestants, I find that an appalling thing
for us to be doing, and the fact that it may have been done in
the welfare bill, which I voted against, and now I learned
there was another reason for my voting against that foolish
bill. And the notion that once having done something, Congress
can never again change it, comes strangely to my ears from
people who I thought were elected in 1994 precisely to undo a
lot of what had been done before. But what you're doing is
embodying the principle, apparently, that in totally non-
religious activities--religious activities--activities in fact,
whereas we've made clear, ``You are prohibited from dealing
with religion. In those purely secular activities, you can take
Federal money, discriminate based on religion and ignore State
laws to the contrary.'' That's a terrible idea.
Chairman Sensenbrenner. The question is on the amendment--
--
Mr. Green. Mr. Chairman.
Chairman Sensenbrenner. What purpose does the gentleman
from Wisconsin, Mr. Green, seek recognition?
Mr. Green. Move to strike the requisite number of words.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Green. Thank you, Mr. Chairman.
By way of clarification of the discussion we just had, I
think in reference made to how we're saying that Catholics
shouldn't hire Protestants and vice versa, I think we're saying
the opposite. I think we're saying they're not forced to under
this law. There's been a lot of talk about freedom of religion
and free exercise of religion and the autonomy of religious
organizations. That is what the key issue is here. I think this
amendment would destroy autonomy of religious organizations.
Now, as the Chairman I think has put very eloquently, we
are not changing law here. We are, instead, recognizing and
reinforcing existing law, law that has been on the books for a
number of years. We keep hearing how this wasn't really debated
in 1996 as part of Welfare Reform. There's been a bit of time
since 1996 and the present. It is interesting that it isn't
brought up again until this point.
If this was a mistake, if this was something that the other
side didn't intend to support, if they didn't know what they
were voting on, they've had a few years to talk about this,
instead of bringing it up at this point.
Mr. Nadler. Would the gentleman yield----
Mr. Green. No, not on my dime. Let me finish my comments
here. I don't have much time.
Let me suggest here, at the very best, what this amendment
seeks to do is to refight a fight that was already fought and
settled some years ago. At the very least what it will do is
threaten the autonomy and the religious freedom of religious
organizations. And at the very worst, I think it's a broadside
against these organizations. It seeks to punish any of these
organizations which decide that they would like to toil in the
fields and get involved in the war on poverty.
What we're saying here is if an organization, if a
religious organization sees a problem in its neighborhoods, in
its communities, if it wants to get involved, if it wishes to
take up the fight, whether it be homelessness, whether it be
poverty relief, whether it be hunger relief, if it chooses to
do that, if it wants to get involved in the fight, it should
surrender an exemption that it enjoys now. I don't think we
want to do that. I think we want to encourage these
organizations to get involved in the fight, not send them away.
Mr. Weiner. Would the gentleman yield?
Mr. Green. This amendment--this amendment would send them
away. It would tell them that they should not, they dare not
get involved in the fight against poverty. I think that's a
terrible message. I think that's a message that is the opposite
of what we should be trying to do here today, of what this
Congress tried to do a few years ago, of what we should be
doing in the future to finish the war on poverty.
Mr. Weiner. Will the gentleman yield on that point?
Mr. Watt. Will the gentleman yield?
Mr. Green. I will yield to Mr. Weiner.
Mr. Weiner. I ask this question as a supporter of title
VII, and I think that so far the responses to this amendment
have presupposed that someone who supports this amendment,
supports eliminating title VII. The question is simply why is
it necessary to fight to protect a right to discriminate based
on religion when it's a nonreligious position?
I think that much of this debate misses people like me, who
fundamentally believe that title VII is the right thing to do,
who want to----
Mr. Green. I'd be happy to answer the question.
Mr. Weiner.--who want to support this initiative, but no
one has yet told me why it's desirable.
Mr. Green. Reclaiming my time.
Mr. Weiner. Certainly.
Mr. Green. Reclaiming my time, the point is, instead, why
should such an organization have to give something up just
because it wants to get involved in the war on poverty?
Mr. Weiner. Would the gentleman permit me----
Mr. Green. What you're saying, what this amendment says is,
if they dare to get involved, then they should surrender. Then
they should surrender the ability to be religiously autonomous,
to take control of their own organization. That's what this
amendment is saying. So I don't view this as a benign
amendment. I view this as an amendment that is a broadside on
religious autonomy of these organizations.
I yield back the balance of my time.
Mr. Watt. Mr. Chairman?
Mr. Weiner. Mr. Chairman?
Chairman Sensenbrenner. For what purpose does the gentleman
from North Carolina seek recognition?
Mr. Watt. I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Watt. Thank you, Mr. Chairman.
I, with all respect to the gentleman from Wisconsin, I
think he is confusing the free exercise of religion with the
free exercise of bigotry. I have absolutely no problem with the
free exercise of religion, but when somebody asks me why should
we not allow churches or religions to discriminate, that is the
free exercise of bigotry. That is not the free exercise of
religion.
Second, with all due respect to him, again, he is right. We
did think we had fought this fight before. We thought we had
fought it in 1964 and '65, not in 1996 or, you know. Some of us
thought that we had outlawed all of this bigotry that we're
talking about, and now we are here raising it again.
So I just think he's missed the point. I'll yield the
balance of my time to Mr. Scott.
Mr. Scott. Thank you, and I thank the gentleman for
yielding.
I think we've been subjected to a bizarre suggestion that,
unless we pass a new bill, we cannot preserve present law. You
preserve present law by not passing a bill.
We have a question from the gentleman from New York, why
should you be able to discriminate? We haven't gotten an answer
to that because the answer to that would be the same answer
you'd give to someone running any other secular program. Under
the manager's amendment, the program you're running cannot be
advancing religion. You can't have worship service, you can't
proselytize during the program.
And if you have a secular program offered by a secular
organization that just doesn't want to hire people of certain
religions, the question is why should they have to?
Mr. Hutchinson. Would the gentleman yield?
Mr. Scott. Let me finish this. The gentleman from North
Carolina said that we argued that, and we thought we'd settled
it in 1965, that whether you liked to hire people of those
religions or not, as a matter of policy, you have to,
particularly when you're receiving Federal funds.
I'll yield the rest of my time to the gentleman from North
Carolina----
Mr. Hutchinson. Would the gentleman from North Carolina
yield?
Mr. Watt. I'm happy to yield to the gentleman.
Mr. Hutchinson. I thank the gentleman.
And this is a very fair question. It gets to the heart of
the issue, so I think it's fair to put us on the spot and ask
us that, although I think the Chairman articulated a response.
It might not be acceptable, but it is the answer. I would give
another answer, that if you have a religious organization
that----
Mr. Watt. Let me just respond to the Chairman quickly,
though----
Mr. Hutchinson. It's your time.
Mr. Watt. It certainly is----
Mr. Hutchinson. I would like to answer.
Mr. Watt.--not as a matter of policy do I accept his
explanation when it comes to the service of soup. I don't have
any--nobody can justify to me why a church, a private group,
anybody ought to be able to discriminate in the service of
soup. We ought to be trying to find the most qualified person
to serve that soup.
Mr. Frank. Even chicken soup?
Mr. Hutchinson. May I respond?
Mr. Watt. We ought not be trying to find a Baptist or, you
know----
Mr. Hutchinson. I have an answer, and I would like to
provide an answer.
Mr. Watt. All right. I'll yield back to the gentleman.
Mr. Hutchinson. The question was originally asked to me,
and I would look at this way, if you have a religious
organization, even if they're engaging in the delivery of a
secular service, there is certain expectation when an
individual goes to that church property to receive a service;
that is, what they receive and who they receive it from is
consistent with the religion.
For example, if you have a Jewish soup kitchen, and they're
required to hire a white supremacist, I think that when people
go there to get the soup, they would be a little bit surprised
to see tatoos----
Mr. Watt. White supremacy is not a protected class. It's a
good cliche, but----
Mr. Hutchinson. I'm sorry, what?
Mr. Watt. It's not a protected class under title VII.
Mr. Frank. Would the gentleman yield?
Mr. Hutchinson. I think the issue is discrimination on the
basis of religion, and there is such a religion, and there is
such a circumstance, and I think----
Mr. Watt. There's no--I'm not aware of any religion called
white supremacy.
Mr. Frank. Would the gentleman yield?
Mr. Watt. I'll yield to the gentleman from Massachusetts.
Mr. Frank. The answer was backwards. We're not denying that
they have a right to discriminate based on outrageous political
views, but you're talking about religion. And what's
interesting, this is reversed. You're now using religion as if
it could be a proxy for bigotry, and if you're saying, ``Well,
there were these white supremacy religions,'' I suppose I would
argue they shouldn't be allowed to come into this program, but
this bill goes much further than what you're arguing for.
This says, and the Chairman said, ``Well, you know, the
Protestant shouldn't have to hire the Jews.'' I don't know.
Maybe what are we saying, the Jews don't have to hire a
Catholic to serve chicken soup?
Mr. Graham. Mr. Chairman?
Chairman Sensenbrenner. The time of the gentleman from
North Carolina has expired.
For what purpose does the gentleman from South Carolina,
Mr. Graham, seek recognition?
Mr. Graham. I'd like to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Graham. These are emotional, a lot of emotional things
being said here that make us all wince a little bit when you
talk about discrimination and religion, and is that really what
we're trying to do here?
Someone suggested that the local government has been doing
this for a long time. I think it was Ms. Lofgren said that
local government has been engaging in using faith-based
associations to help with local problems. I think that's
probably true. I think that's probably a good idea. I think
this is a good idea.
What motivates people to want to serve soup or take care of
people with AIDS or folks that are just hurting in general?
Some people are motivated to help their fellow man for a lot of
reasons, and there's a group of those people who are motivated
by belief in God, that their religious beliefs compel them to
associate together to do good, to go out and help people who
are hurting.
This bill says, ``Come on in and help us, but you're going
to check your proseltyzing at the door. If you want to serve
soup, if you want to help people who are downtrodden, we're not
going to be biased against you because you want to associate
together for religious reasons because that's your motivation
to help. If you've got something to bring to the table and you
can do it well, you're welcome. Come on in. No more bias
against you.''
It's funny that one of the first things that Congress did
when we organized, with many of the Founding Fathers still
alive, is we bought 16,000 Bibles with public funds. I'm not
advocating doing that, but I am advocating that we kind of
mimic what local government has done and use some good old
common sense here. Nobody supporting this bill wants to take
Federal money and prop up a religion. What I want to do is
allow people who are motivated because of their religious
beliefs to help somebody to have a shot at doing it, if they
can do it well, and take the bias that exists today against
those people and throw it in the trash bin where it belongs.
We've got strict guidelines that regulate your motivation,
but if you're pure at heart and you want to help people who are
downtrodden, whatever problems they have, and you're willing to
check your religion at the door in terms of practicing it, but
taking your heart and the motivation for wanting to help, you
are welcome. It is no more or no less, and the Welfare Reform
Bill has the exact same language. We're allowing people to
employ folks who have been on Welfare for four/five
generations, who are banded together, nuns--I guess I can't be
a nun for a lot of reasons, but I don't want to keep nuns from
helping people who are motivated because of their religion to
bring some caring, some comfort to people who are hurting----
Mr. Weiner. Would the gentleman yield on that point?
Mr. Graham.--and not convert them to Catholicism.
Mr. Weiner. Would the gentleman yield on that point?
Mr. Graham. Yes, I'll be glad to.
Mr. Weiner. You know, I think that the problem is, you
know, you're talking to someone who agrees with everything you
said, and someone who's predisposed----
Mr. Graham. Let's vote for the bill then.
Mr. Weiner.--predisposed to be supportive of the bill, who
now is asking a substantive question about an amendment, and
I've yet to really get, and Mr. Hutchinson came the closest to
doing it, but I hear the rhetoric in support of the bill, and I
appreciate it. But for someone who's wrestling with the
efficacy of the bill, when I hear such a fever pitch about
defending a right that no one can really justify practicing, I
agree with title VII. Sold. I'm with you 100 percent. Why would
you want to, if it's purely a secular activity, if none of that
is written into the law, you can't do anything sectarian at
all, why is there such a fierce defense of the right to
discriminate based on religion?
You know, it makes someone like me, who is sitting on the
fence wavering back and forth, who's getting tugged by people
on both sides, to say, ``You know what, this makes me very
nervous. What is it that I'm missing about this that makes it
so--''
Mr. Graham. I will try to answer that question.
Mr. Weiner. Thank you, sir.
Mr. Graham. In the Welfare Reform Bill, we have the exact
same language that we're proposing here. Here's what we're
trying to say: that if you're motivated by your religious
beliefs and that your association is formed around a
denomination or religious belief, a set of principles, we, the
Federal Government, are not asking you to change who you are to
help your fellow man, we're requiring you to leave your
religious practices at the door, but you, and others, are
advocating to me that you can help only under our terms. This
is not about fostering people who have a religious prejudice,
this is about allowing people motivated, some because of their
belief in God and associations----
Mr. Weiner. Would the gentleman yield?
Mr. Graham. Please let me finish my thought.
You're wanting us to make these groups disband. We're
wanting them to come into the--come into to----
Chairman Sensenbrenner. The time of the gentleman has
expired.
Mr. Graham. Come in and help, that's all.
Mr. Weiner. Mr. Chairman?
Chairman Sensenbrenner. For what purpose does the gentleman
from New York, Mr. Weiner, rise?
Mr. Weiner. Wish to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Weiner. I have to say, you know, I came to this room,
as some in the audience are aware, you know, seriously
considering, and I still am, supporting this bill because I
think that, on one hand, there's a great deal of great work
being done, and I don't understand where, in the amendment,
that we're currently considering, it says you have to abandon
your religion. I don't know where in this, in this amendment it
says you have to disband your organization. I don't know where
it says that someone with a good heart will be driven out of
the program.
I think it's a fairly simple proposition, and I've asked it
several different times, whenever anyone has yielded, I am
asking what is a substantive question about why it is that it's
necessary to have the protections of title VII included, when
title VII, let's face the facts, title VII was written under
the precept that we don't want to require people of one
religion who are engaging in their religion, who are
participating in religious activities, from being forced to
embraced, through hiring, someone who disagrees with those
religious precepts. So we carved out this exemption which, for
some in this body, is controversial, I support it. I believe
it's the right thing to do.
But now we have a nonreligious element to that
organization. It's nonreligious not because I say it is, but
because, Chairman Sensenbrenner, in his very sensible
alternative that I think went a long way to assuaging people
like me about the true intents of this bill, wrote it in, in so
many words. In a colloquy between Mr. Frank and Mr.
Sensenbrenner, they made it even clearer that you can't even
say you've got to find--you've got to find a spirit, you've got
to find God before you get off alcohol. You can't even say
that, according to the colloquy.
And now here it is an amendment to simply say, look, if
you're going to do these purely secular things, these
nonreligious things that just happen to be under the umbrella
of a religious organization, people who want to help, they want
to do the right thing, simply don't, for the purposes of hiring
for those jobs, don't discriminate based on religion.
And rather than have a debate about why it's necessary to
have that, there is a--there is the straw man of we're trying
to tear down the program. Well, I don't know if the sponsor is
or isn't, but I really do believe that this is one of the two
or three things that we can fix, make this a bill that will be
widely acceptable in this body, and I just don't see--I just
don't see the wisdom on a political level by----
Mr. Issa. Would the gentleman yield?
Mr. Weiner. Certainly.
Mr. Issa. Perhaps I can give you an example that might
clarify why I think that, as the law is about to be written, it
has merit.
In our own congressional offices, we have a charge to
represent, fairly and equally, the people who voted for us and
the people who will never vote for us, some 600,000 per
district, and we take that charge seriously, and we execute it,
I think, diligently to a Member. But in our own organizations,
on both sides of the aisle, we staff with people who believe as
we believe, and we would never consider putting together a paid
staff of people who didn't vote for us, voted for our opponent
and still don't agree with us.
Mr. Weiner. Okay. If you'll permit me to reclaim the time,
that's not what title VII says. You're not covered under title
VII. You've got to be a religious organization exercising a
religious, a predominantly religious function in order to
qualify for title VII. We're now taking a nonreligious
function, by the testimony of everyone, by the words of the
bill, and we're extending--we're extending Federal dollars for
this non-government program operating under religious umbrella.
I'm with you, tentatively, for now, for the moment.
And all we're saying is, for those purposes, you can't
discriminate based on religion. I'm not talking about based on
your views on the world. You can probably discriminate based on
that now. I'm not saying based on whether you think it's a good
or bad thing to have a drug treatment program. You can
discriminate on that based on now. Why do you want to
discriminate based on religion? Answer that question.
Mr. Frank. Would the gentleman yield?
Mr. Weiner. Certainly, sir, even though I'm not sure you're
the best person to answer.
Mr. Frank. No, I said--but you've the hit---- [Laughter.]
Mr. Frank. You've hit the point that I think is so
disturbing about this. The assumption against this amendment is
that there is somehow something unpleasant or debilitating
about asking religious people to associate with someone of
another religion. My friend from South Carolina said, ``Well,
they're motivated by their common religion, and you don't want
to take that away.'' What is it about associating with someone
of good faith of a different religion that so drains you of
your motive to be helpful? It's that very notion that somehow
forcing you--forcing a Jew to associate with a Protestant or a
Protestant with a Muslim or a Muslim with a Catholic that
somehow this is disorienting.
Mr. Weiner. Will the gentleman yield?
Mr. Frank. You are promoting a sense of religious
exclusivity and hostility. Yeah, I do not want Jews and
Protestants to treat each other as I treat people who run
against me in an election. [Laughter.]
Chairman Sensenbrenner. The time of the gentleman from New
York has expired.
Ms. Waters. Mr. Chairman?
Mr. Bachus. Mr. Chairman?
Chairman Sensenbrenner. For what purpose does the gentleman
from Alabama, Mr. Bachus, seek recognition?
Mr. Bachus. To strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Bachus. Earlier in this debate, the Nation of Islam was
brought up by the gentleman from Massachusetts and the
gentleman from North Carolina in that agreements they had to--
with certain public housing communities. And it was said
earlier in this hearing that the problem with the Nation of
Islam that we objected to was that they were hiring people
based on their religion.
Now, in fact, that wasn't, if it was raised, it was raised
only incidentally, because the Baltimore Sun and several
other--I conducted those hearings, as Chairman of the Oversight
Committee, some of them that we participated in. I wanted to
tell you my recollection. I've gone back and read during the
break what some of the news coverage of the day was. What they
were accused of doing was roughing up residents, of coercing
the residents, of even the word ``racketeering'' was used, of
people that had businesses, intimidating people that had
businesses in the community----
Mr. Weiner. Would the gentleman yield----
Mr. Bachus. And of violating people's civil rights by
holding and--let me get this right, I don't want to--by strong-
arming and holding people suspected of breaking laws----
Mr. Weiner. Would the gentleman yield on the point just----
Mr. Bachus.--and interrogating them.
Mr. Weiner. Would the gentleman yield?
Ms. Waters. Would the gentleman yield?
Mr. Weiner. I might be able to shed some light on that.
Mr. Bachus. I will yield in----
Mr. Weiner. I was the----
Mr. Bachus.--of disseminating anti-Semitic literature,
which actually calls for--called for acts of violence and also
anti----
Mr. Weiner. If the gentleman would yield, I might be able
to shed some--I was, at the time, in the City Council, and I
was the Subcommittee Chairman of Public Housing. The fact is
that largely what got people's goat is the fact that it was the
Nation of Islam and their core beliefs. That's what made it--
now, there were other issues that were raised, but at the crux
of the issue was because they were the Nation of Islam, a
virulently anti-Semitic organization, and a lot of people were
offended by that.
Ms. Waters. Would the gentleman yield?
Mr. Weiner. I will gladly yield back.
Mr. Bachus. But what I'm saying is what was--and the
hearings were about things they were saying--they were actually
advocating violence, and----
Ms. Waters. Will the gentleman just for a moment?
Mr. Bachus. I will yield.
Ms. Waters. And since you bring it up, I just kind of want
to set the record straight. For those of us who have the very,
very serious problems in public housing of drugs and crime, et
cetera, the Muslims were--were absolutely effective in helping
to deal with those problems. Yes, there are other problems, and
I was more interested in what people had to say about them
proselytizing, but I want to tell you, they did not--there's
never been any history of roughing up people, of creating harm.
That's not what they were doing. They were taking very young
men who didn't have a sense of themselves and helping them to
stay out of jail and to go to school and keeping those projects
safe for all of the residents.
Mr. Bachus. And there was a--and there was a serious debate
as to whether they were breaking the law or not, and----
Mr. Frank. Mr. Chairman, a parliamentary inquiry.
Mr. Bachus. But there were people with other organizations
which said they were----
Chairman Sensenbrenner. The time belongs to the gentleman
from Alabama.
Mr. Bachus. But what I'm saying, the discussion did not
focus on the fact of them hiring----
Mr. Frank. Will the gentleman yield for a parliamentary
inquiry?
Mr. Bachus. I never remember that being mentioned.
Mr. Frank. Will the gentleman yield for a parliamentary
inquiry?
Mr. Bachus. I will yield, but I----
Mr. Frank. I thank the gentleman. Does the fact that none
of this discussion relates to the amendment under consideration
bother anybody but me?
Mr. Bachus. Well, it does in the----
Chairman Sensenbrenner. The Chair does not make subjective
evaluations of Members' debates.
Mr. Bachus. It was brought up----
Chairman Sensenbrenner. You wouldn't want me to do that,
would you?
Mr. Frank. On relevance, I definitely would.
Mr. Bachus. It was brought up----
Mr. Frank. I would just like to make a point of order this
is not germane to the amendment under debate.
Mr. Bachus. I'll take back my time. It was brought up that
the objection to the Nation of Islam and their contracts with
the public housing----
Mr. Frank. If the gentleman will yield, but not in the
context of this amendment.
Mr. Bachus.--because they were hiring people of their own
religion. That's not what the newspaper accounts say, and
that's not why my recollection was.
Chairman Sensenbrenner. The gentleman yields back.
The question is on----
Ms. Waters. Mr. Chairman? Mr. Chairman?
Chairman Sensenbrenner. The question is on the amendment--
--
Ms. Waters. Mr. Chairman? Mr. Chairman? [Laughter.]
Chairman Sensenbrenner. The gentlewoman from California,
Ms. Waters, for what purpose do you seek recognition?
Ms. Waters. Strike the last word.
Chairman Sensenbrenner. The gentlewoman is recognized for 5
minutes.
Ms. Waters. So much has been said here today. I think it's
going to take us a while to be able to deal with the
misinformation that is being disseminated here.
First of all, I keep hearing that there are--there is some
bias against religious organizations seeking Federal funds. I
do not believe that to be true. As a matter of fact, I think if
we take a look at the Catholic charities, many of our Jewish
organizations, we will find that they do very, very well in
responding to requests for proposal, and they have child care
centers, they have senior citizens operations, they have all
kinds of operations. In my district, we have churches, even
small churches who have done quite well in competing for
Government money.
So I wish, unless there is some documentation or
information that somebody can bring forward to show that
there's some bias that religious organizations are not able to
compete, I wish we would just get that off the table because
that simply is not true.
Secondly, it was said earlier that many of the cults or
more bizarre religious organizations that some people have some
concerns about--Mr. Gekas, for one, who was trying to figure
out would they be able to get Government funding. I think we
tried to make it clear that all, all religious organizations,
be it cult or not, will be eligible to compete for funding
under this legislation.
Someone said, ``Well, you don't have to worry about that
because if they were interested, they would be doing it today,
and many of those cults that you're worried about are not doing
it.'' But I have to bring to your attention, they would not
receive the kind of exemptions that we are promoting in this
legislation if they competed today. If they compete, if this
bill is passed, they will find it much easier, and they will
want to be more involved because they will not be prohibited
from discriminating in any shape, form or fashion that they
would like to if they describe that as part of their religion.
What really worries me, I'm not so worried so much about
even whether or not people are going to discriminate based on
race. I mean, as much as we work at it, that happens today. But
what I'm worried about is the expansion of the discriminations.
If your religion says you do not accept women who are
divorcees, you do not accept a person who's had a child out of
wedlock, that it's against your religion to allow a gay person
to be a part of your operation, we're just expanding the
opportunities for discrimination. Where does it stop?
There are all kinds of religions. Someone just brought me
this religion that is organized around Satanism and talking
about what they believe in, and they would be free to exercise
their beliefs under this bill. So I am supporting this
amendment, and I'm hopeful that we can start to speak in ways
that we can document, as we move forward, so that we can roll
out the truth about what we're doing. The fact of the matter
is, if we do not exclude from this legislation the ability to
discriminate, we will be opening up Pandora's box to expand
discrimination beyond what we know and understand about
discrimination today.
So I would ask my colleagues to please support the
amendment.
Mr. Scarborough. Mr. Chairman?
Chairman Sensenbrenner. For what purpose does the gentleman
from Florida, Mr. Scarborough, seek recognition?
Mr. Scarborough. To strike the last word. There have been--
--
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Scarborough. There have been a lot of sort of hysterics
going on here, the free exercise of bigotry and other things,
people talking about that, a lot of show-boating, but I do want
to talk to Mr. Weiner.
And, Mr. Weiner, you've asked the question repeatedly, and
I'm not speaking for the Chairman, I'm not speaking for
anybody, but let me take a crack at this thing, and maybe we
can have a little back and forth here to see if you--because I
understand what the gentleman from California was starting to
get at, where we've heard it said over and over again that
Members' offices, the culture of Members' offices reflect the
Member himself or herself. Likewise, we've, you know, we've
heard about the culture of IBM, the culture of Microsoft.
There, I mean, there is a culture to each organization which
either makes that organization effective or makes it fail.
Now, I think it's safe to say, and there may be some people
that disagree with me on this Committee, but the majority of
Americans do believe that, by their inherent nature, faith-
based organizations can effectively deliver a service to their
communities in need in a way that the Department of HHS cannot.
If that were not the case, then obviously Al Gore, and George
W. Bush, and just about every other politician wouldn't be
talking about how great faith-based organizations are in
delivering services to the most needy.
I do believe, although it has not been articulated well,
and I'm not trying to persuade you, I'm just merely saying that
there are some of us that believe this that may not be able to
articulate it very well, that there is a culture in, let's say,
rural Protestant Church that is separate from a culture in,
let's say, an urban synagogue or in a Catholic Church that is
separate from another.
And I see Ms. Waters. She's about to explode, and I'm sure
I'm going to be a bigot, and this, that, and the other, but I'm
just saying there is----
Chairman Sensenbrenner. The Chair is prepared to declare a
30-second recess.
Mr. Scarborough. Why is that?
Chairman Sensenbrenner. So that nobody explodes. We don't
want that to happen.
Mr. Scarborough. I love Ms. Waters---- [Laughter.]
Mr. Scarborough. I love Ms. Waters, and Ms. Waters loves
me. She hugs me on the floor every chance she gets. That's why
she got up. She couldn't resist herself. [Laughter.]
Mr. Scarborough. But there is a culture, seriously, there
is an inherent culture in these organizations, like, for
instance, and I'll talk about my church. I'm Southern Baptist.
I disagree with a lot of things they believe about people who
are divorced not being able to be deacons or, or women not
being able to preach, all right? But I do know that there are
Southern--and if that offends me, I can, I can take a hike. But
there are, even though I disagree with some of the things that
people in the Southern Baptist Church believe in, they can
effectively deliver services because of the culture of whether
it's First Baptist Church of Pensacola or----
Mr. Weiner. Will the gentleman yield on that point?
Mr. Scarborough. Yes, sir, I will.
Mr. Weiner. Would the gentleman yield on that? And I'm
convinced the Southern Baptist Church can deliver those under
this bill.
Perhaps you can enlighten me, and using the example of the
Southern Baptist Church or whatever you referred to, someone
coming in for a job interview to work in a job training program
to teach typing to someone who had been laid off----
Mr. Scarborough. Right.
Mr. Weiner. Why is it, give me an example, just so I can
fully get my mind around it, why is it necessary that they be
Baptist and why is it not only necessary, why is it so
important to this program that it means offending 35 or 40
Members around here who might be willing to make this a bill
that 300 people can vote for?
Mr. Scarborough. Yeah, well, I don't think it's--reclaiming
my time--I don't think it's necessary. And, obviously, I think
most of us on this panel, I would hope, would agree that it
would be extraordinarily bigoted for any, any organization, be
it a faith-based or secular organization, to prevent people
from being hired. But I think the biggest concern is
compelling, for instance, a synagogue in a certain area to hire
a fundamentalist, right wing, religious, whatever, that would,
after all----
Mr. Weiner. Typing teacher?
Mr. Scarborough. Hold on a second. Hold on a second.
Mr. Weiner. What does a right-wing typing teacher do, only
type with the right hand?
Mr. Scarborough. We're talking about, and again----
[Laughter.]
Mr. Scarborough. Again, if you want to get laughs, that's
fine, but, for instance, delivering soup, let's say, for
instance, in an area that's heavily served, let's say a
synagogue in an urban part of the area, listen, they want to
get their soup. They don't want to hear somebody with views
that's completely different from their own views. And I
understand, I understand what the bill says that they're not
allowed to do that. But, again, if you compel these
organizations, again, whose culture, many Americans believe,
allow faith-based organizations to deliver services more
effectively than, say, the Department of HHS----
Chairman Sensenbrenner. The time of the gentleman has
expired.
Mr. Scarborough.--there's a risk of changing the very
culture of those organizations.
Ms. Lofgren. Mr. Chairman?
Chairman Sensenbrenner. The time of the gentleman has
expired.
Mr. Scarborough. Thank you.
Chairman Sensenbrenner. For what purpose does the
gentlewoman from California, Ms. Lofgren, seek recognition?
Ms. Lofgren. To strike the last word.
Chairman Sensenbrenner. The gentlewoman is recognized for 5
minutes.
Ms. Lofgren. I--I was fascinated by the last exchange
because, apparently, even though there is a prohibition on
proselytizing, the reality would be that there would be
proselytizing, and therefore we need to make sure that
religious institutions can discriminate against people who are
not of their religion so that they can violate this statute,
which I think is a very odd proposition.
But I would just, going back to my experience in local
government, I would just like to say I think this bill is a, is
a solution in search of a problem. I mean, we used all kinds of
contracts with religious-based organizations. Catholic
Charities ran the Immigration Counseling Center. The only
instance in my 14 years on the Board of Supervisors that ever
came to my attention that someone, a religious group felt that
they might not be--having treated fairly, was an evangelical
church who wondered were they being treated fairly, and I met
with them, and we made sure that they were brought into the
opportunity to provide food through the food service, the
largest faith-based group in Santa Clara County, PAC, which
has, I think now, 17 parishes and churches. They provide
homework centers, the biggest homework centers for all the kids
after school. They wouldn't even consider discriminating
against a tutor based on their religion, and Catholic Charities
wouldn't even consider discriminating against a psychologist in
hiring for one of the programs, the mental health programs they
run. It would be inconceivable.
So I really strongly believe that Mr. Scott's amendment is
necessary and that this bill is probably not, but I would like
to yield to Mr. Scott, at this point.
Mr. Scott. Thank you, and I thank the gentlelady for
yielding.
I just want to make a couple of points. First of all, a lot
has been said about Welfare Reform. What has not been said is
that when President Clinton signed the bill, he indicated that
he thought that portion of the Welfare Reform Bill was
unconstitutional, rules were not implemented to promulgate that
portion of the legislation.
It was also suggested that this is the same old language
that we have in Welfare Reform--not true. The provision in
Welfare Reform has the ability to discriminate, but it
specifically said that nothing in this section shall be
construed to preempt any provision of a State Constitution or
State statute that prohibits or restricts the expenditure of
State funds in and by religious organizations. So, if you have
commingled funds, and it's illegal to discriminate under State
law, you can't do that. But under this, under the manager's
amendment, you waive all State laws.
The gentleman from New York really hasn't been given a good
answer to his question. If you have a--if you have a person of
faith running a secular program, the present law in America is
that they are subject to civil rights laws, whether they like
it or not.
Mr. Gekas. Mr. Chairman?
Mr. Scott. That has been the policy for years. If they
receive Federal money, if they're running a large organization
and hire people, whether they like it not, we've set the policy
that they cannot discriminate against people based on their
religion.
What we're doing in this bill is saying, well, maybe that
was a bad idea. I think that was a good idea, and we ought not
change it.
I yield back the balance of her time.
Mr. Gekas. Mr. Chairman?
Chairman Sensenbrenner. Let me try to put the question. The
question is on the Scott amendment to the Chairman's amendment.
Those in--well, I recognize somebody on the Republican side
next.
For what purpose does the gentleman from Pennsylvania, Mr.
Gekas, seek recognition?
Mr. Gekas. For the excellent reason of yielding to the
gentleman from South Carolina.
Chairman Sensenbrenner. Well, you can strike the last word.
You're recognized for 5 minutes.
Mr. Gekas. And I yield to the gentleman from South
Carolina.
Mr. Graham. I would like to--Mr. Scott maybe can help me
with this. I think the law is pretty clear, as I understand it,
and maybe my understanding is wrong.
Title VII that exists today in Federal law has an
exemption, as I understand it, for religious organizations,
that they're not required under title VII to change their
hiring practices, but they are required not to discriminate on
the basis of race, color, national origin, sex, age, and
disability, and that there are several cases that maintain that
you do not lose that ability to hire, based on your religious
principles, if you receive Federal funds.
There are several schools that--St. Francis College in
Brooklyn, Mary Grove College in Detroit, the Baptist
Theological Seminary in Richmond--maintain the religious
character of their schools through hiring practices. They offer
child care services, Pell grants and other Federal aid is
provided to students attending those schools, and there's a
line of cases that say that if you're a religious organization,
you can, in fact, receive Federal support and funding and not
change your religious hiring practices, but you can't
discriminate otherwise.
I would argue that that logic applies here, that we're--
that we're allowing people to participate in providing services
in a secular way. We're requiring them to leave their religious
practices at the door, but we're not going to require them to
change their hiring practices because to do so would undermine
the character of the organization, and there is many cases that
seem to uphold that concept.
Mr. Frank. Would the gentleman from Pennsylvania yield?
Mr. Gekas. Yes, I will yield, but only to the gentleman of
Illinois first, and then receive the rest of the time that I
might yield to the gentleman from Massachusetts.
Mr. Frank. Hope will spring eternal. [Laughter.]
Mr. Hyde. I have been listening to this with great
attention all afternoon, and I--at the risk of oversimplifying,
I would like to cut to the chase. What we're talking about in
the, in the whole, is an army of people out there motivated by
spiritual impulses who want to do good, who want to help solve
poverty, disease, violence in the community, homelessness,
hunger, and some of them are clergy, some of them are not. They
are religiously motivated, and we've spent all afternoon
finding ways to keep them out. We've got enough help. We don't
need--there's too much God out there. We suffer from an excess
of God, for some crazy reason.
Discrimination. If the First Baptist Church wants to do
something as the First Baptist Church, take care of some
homeless people, the fact that they want to retain their
identity and not become another local United Fund operation,
there's nothing wrong with that. There's nothing wrong with the
Black Caucus saying, ``You want to join us, you've got to be
black.''
Ms. Waters. We don't say that.
Mr. Hyde. Oh, well, Pete Stark didn't get in, did he? Am I
welcome?
Ms. Waters. Yes.
Mr. Hyde. What are the dues?
Ms. Waters. Huh?
Mr. Hyde. What are the dues? [Laughter.]
Ms. Waters. Mr. Chairman----
Chairman Sensenbrenner. Yes?
Ms. Waters. I must correct the record. You do not have to
be black to be a member of the Black Caucus.
Mr. Hyde. You mean an associate member.
Ms. Waters. No, I do not mean an associate member.
Chairman Sensenbrenner. The time belongs to the gentleman
from Pennsylvania.
Mr. Hyde. All right. I'm sorry. Let me finish.
There is discrimination and there is invidious
discrimination. I don't think it's discriminating for Baptists
to want to hire Baptists to do something as the Baptist Church
is going to do. I think that's fine. That's not invidious
discrimination. So, as far as I'm concerned, we ought to figure
out ways to facilitate the exploitation, the benign
exploitation of these wonderful people who want to help us with
our very human problems, instead of finding ways to say no
because, for fear, some God might sneak in under the, under the
door.
Thank you.
Mr. Frank. Will the gentleman yield?
Chairman Sensenbrenner. The time of the gentleman is about
to expire in 5 seconds----
Mr. Watt. Mr. Chairman?
Chairman Sensenbrenner. The question is on the amendment of
the gentleman from Virginia, Mr. Scott, to the Chairman's
amendment.
Mr. Watt. Mr. Chairman?
Chairman Sensenbrenner. Those in favor, will say aye.
Mr. Watt. Mr. Chairman, you are passing over a Member down
here.
Chairman Sensenbrenner. For what purpose does the gentleman
from California seek recognition?
Mr. Schiff. Move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Schiff. The very narrow question that's been presented
by this amendment is simply whether religious institutions
should be allowed to discriminate on religious grounds in
providing secular services with Federal dollars.
Now, the point has been made that this is already the law,
but the fact of the matter is this is not already the law.
There is no provision of the law that allows direct Federal
funding of religious institutions for secular services with a
provision allowing religious discrimination and the provision
of those services or in hiring decisions. So this is new law.
Now, the point is also made that why should we preclude
religious institutions from entering the war on poverty.
Mr. Graham. Would the gentleman yield?
Mr. Schiff. When I'm finished, I will be glad to yield. Why
should we preclude religious institutions from entering the war
on poverty? Well, of course, we're not. Religious institutions
are involved in the war on poverty. They've been vital in the
war on poverty for all of the reasons that the gentleman from
Illinois has also mentioned, and that's a good thing. The
question is whether they should be able to receive Federal
funds and discriminate on religious grounds. That's a very
different question than whether they should be involved in the
war on poverty.
I would ask can a secular organization discriminate on
religious grounds? Would we allow a secular organization that's
providing soup or food or other services to discriminate on
religious grounds? No, we would not. Aren't we then preferring
religion by allowing religious organizations to discriminate
when providing secular services, where we do not allow secular
organizations to do the same thing?
Now, some of the Members have made the I find astounding
point, as the gentleman from California did, that, well, in our
congressional offices we can choose people of like political
mind. But, plainly, we cannot in our political offices decide
that we will only hire people of a certain religion. Indeed, it
would be inappropriate for us to ask, in our congressional
offices, what the religious views are of potential job
applicants. That would be completely inappropriate, and I think
it no more appropriate, when we're talking about the provision
of purely secular services for religious organizations, to ask
the same question.
The only, I believe, real objection to this amendment was
made by the Chairman, and it's a very real concern and a
practical one, and that is that many of these religious
organizations are small, they have small staffs, and it is the
same people who would be desired to provide the religious
service and, in a separate context, the secular service, and
that's a real problem.
But, ultimately, the question then becomes what is more
important, that we allow, out of desire to accommodate those
smaller institutions, that we allow the commingling of
functions of that individual and the potential of commingling
of dollars in support of that individual, that we allow the
discrimination in the hiring of that individual as an
accommodation, whether that ought to outweigh the issue of
being able to discriminate on religious grounds and the use of
Federal dollars.
And I must say that when you weigh the two, that very real
and understandable practical concern, against the very strong
desire not to discriminate on religious grounds, the practical
concern must give way.
Mr. Graham. Would the gentleman yield?
Mr. Schiff. I will in just one moment.
I think that the reasons this bill has been offered, most
eloquently expressed by the gentleman from Illinois, are very
well-founded and understandable, and the opposition has nothing
to do with a desire to take God out of public life or
charitable institutions. I think, rather, the concern is out of
a desire to strengthen and keep strong those institutions, and
at the same time recognize that, in circumstances where we're
talking about purely secular services, there is no need, and
every desire not to discriminate.
I would be happy to yield the balance of my time.
Mr. Graham. Just to give you my interpretation of the law,
I disagree with the gentleman's interpretation of current law.
Section 702(a) of the Civil Rights Act of 1964 exempts
nonprofit private religious organizations engaged in both
religious and secular nonprofit activities from title VII's
prohibition on discrimination of employment on the basis of
religion.
The United States Supreme Court in The Corporation of the
Presiding Bishop of the Church of Jesus Christ of Latter Day
Saints versus Amos held that no provision in 702(a) states,
``By receiving Federal funds, that the prohibition--that the
exemption is waived. Title VII's prohibition on discrimination
in employment is not forfeited when a faith-based organization
receives a Federal grant.''
I believe that's the law, and this amendment would change
the law.
Chairman Sensenbrenner. The gentleman's time has expired.
The question is on the Scott amendment to the Chairman's
amendment.
Those in favor will say aye.
Opposed, no.
The noes appear to have it. Record vote is ordered. Those
in favor of the Scott amendment to the Chairman's amendment
will, as your names are called, answer aye, those opposed, no,
and the clerk will call the roll.
The Clerk. Mr. Hyde?
Mr. Hyde. No.
The Clerk. Mr. Hyde, no. Mr. Gekas?
Mr. Gekas. No.
The Clerk. Mr. Gekas, no. Mr. Coble?
Mr. Coble. No.
The Clerk. Mr. Coble, no. Mr. Smith?
[No response.]
The Clerk. Mr. Gallegly?
Mr. Gallegly. No.
The Clerk. Mr. Gallegly, no. Mr. Goodlatte?
[No response.]
The Clerk. Mr. Chabot?
Mr. Chabot. No.
The Clerk. Mr. Chabot, no. Mr. Barr?
Mr. Barr. No.
The Clerk. Mr. Barr, no. Mr. Jenkins?
Mr. Jenkins. No.
The Clerk. Mr. Jenkins, no. Mr. Hutchinson?
Mr. Hutchinson. No.
The Clerk. Mr. Hutchinson, no. Mr. Cannon?
Mr. Cannon. No.
The Clerk. Mr. Cannon, no. Mr. Graham?
Mr. Graham. No.
The Clerk. Mr. Graham, no. Mr. Bachus?
Mr. Bachus. No.
The Clerk. Mr. Bachus, no. Mr. Scarborough?
Mr. Scarborough. No.
The Clerk. Mr. Scarborough, no. Mr. Hostettler?
Mr. Hostettler. No.
The Clerk. Mr. Hostettler, no. Mr. Green?
Mr. Green. No.
The Clerk. Mr. Green, no. Mr. Keller?
Mr. Keller. No.
The Clerk. Mr. Keller, no. Mr. Issa?
Mr. Issa. No.
The Clerk. Mr. Issa, no. Ms. Hart?
Ms. Hart. No.
The Clerk. Ms. Hart, no. Mr. Flake?
[No response.]
The Clerk. Mr. Conyers?
Mr. Conyers. Aye.
The Clerk. Mr. Conyers, aye. Mr. Frank?
Mr. Frank. Aye.
The Clerk. Mr. Frank, aye. Mr. Berman?
[No response.]
The Clerk. Mr. Boucher?
[No response.]
The Clerk. Mr. Nadler?
Mr. Nadler. Aye.
The Clerk. Mr. Nadler, aye. Mr. Scott?
Mr. Scott. Aye.
The Clerk. Mr. Scott, aye. Mr. Watt?
Mr. Watt. Aye.
The Clerk. Mr. Watt, aye. Ms. Lofgren?
Ms. Lofgren. Aye.
The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
[No response.]
The Clerk. Ms. Waters?
Ms. Waters. Aye.
The Clerk. Ms. Waters, aye. Mr. Meehan?
[No response.]
The Clerk. Mr. Delahunt?
[No response.]
The Clerk. Mr. Wexler?
Mr. Wexler. Aye.
The Clerk. Mr. Wexler, aye. Ms. Baldwin?
Ms. Baldwin. Aye.
The Clerk. Ms. Baldwin, aye. Mr. Weiner?
Mr. Weiner. Aye.
The Clerk. Mr. Weiner, aye. Mr. Schiff?
Mr. Schiff. Aye.
The Clerk. Mr. Schiff, aye. Mr. Chairman?
Chairman Sensenbrenner. No.
The Clerk. Mr. Chairman, no.
Chairman Sensenbrenner. Are there additional Members in the
room who desire to cast their vote or change their vote?
The gentleman from Arizona?
Mr. Flake. No.
The Clerk. Mr. Flake, no.
Chairman Sensenbrenner. Further Members who wish to change
or cast their votes?
If not, the clerk will report.
The Clerk. Mr. Chairman, there are 11 ayes and 19 nays.
Chairman Sensenbrenner. The amendment is not agreed to.
Are there further amendments?
Mr. Watt. Mr. Chairman?
Chairman Sensenbrenner. For what purpose does the gentleman
from North Carolina seek recognition?
Mr. Watt. Mr. Chairman, I have an amendment at the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
Mr. Watt. It's the one that starts, ``Page 13, line 19.''
The Clerk. Amendment to the Sensenbrenner amendment to H.R.
7 offered by Mr. Watt.
Mr. Watt. Mr. Chairman, I ask unanimous consent the
amendment be considered as read.
Chairman Sensenbrenner. Without objection, so ordered.
[The amendment follows:]
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Watt. Thank you, Mr. Chairman. I hope this doesn't set
off a repeat of the same debate again that we just had on the
Scott amendment.
The concerns, although I voted for the Scott amendment,
that I thought were going to be raised about the Scott
amendment was that his amendment was too broad, and basically
wiped out the religious organizations' exemption under the
Civil Rights Act of 1964, which I believe is, as Mr. Weiner has
indicated, an important exemption to have for the religious
activities of a church or religious organization.
Where I think we run into problems is the language on Page
13, starting on lines 19 through 23, which says, ``and any
provision in such programs that is inconsistent with or would
diminish the exercise of an organization's autonomy, recognized
in section 702 or in this section, shall have no effect.''
I think the Chairman's language walks both sides of this.
It says, on one hand, that religious organizations have an
exemption. It says, on the other side, that basically they can
do anything that they want to do, whether it's with their own
funds or with Government funds, and this amendment would simply
make it clear that the religious exemption for religious
activities under title VII is protected, but that nothing in
this section would alter the duty of a religious organization
to comply with the nondiscrimination provisions of title VII of
the Civil Rights Act of 1964 in the use of funds from programs
described under this bill.
I think it's absolutely important to be clear that
religious organizations are not required to hire members of
other faiths to perform their core religious functions, but I
also think it is absolutely imperative that we make it crystal
clear that in the use of Federal funds we will not tolerate
employment discrimination, and I am hopeful that my colleagues
will agree with that proposition and will support this
amendment, and I yield back the balance of my time.
Chairman Sensenbrenner. For what purpose does the gentleman
from Ohio seek recognition?
Mr. Chabot. Move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Chabot. Thank you, Mr. Chairman. I must oppose the
amendment. The only reason the language of E(e) is in there is
because when the 1996 Welfare Reform Act passed, it created an
entirely new Federal program. It replaced AFDC with TANF, so
there was no need to make sure any inconsistent Federal
provisions were preempted, but H.R. 7 applies the same title
VII exemption to these existing Federal programs, so we have to
make sure that preservation is consistently applied. The bottom
line is, is the recommended insertion is redundant. Nothing in
the bill does anything to prevent the enforcement of other
Federal civil rights laws. These laws already apply of their
own force.
I yield back the balance of my time.
Mr. Frank. Mr. Chairman?
Chairman Sensenbrenner. For what purpose does the gentleman
from Massachusetts seek recognition?
Mr. Frank. Mr. Chairman, I speak in--I ask to strike the
requisite number of words for the purpose of----
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Frank.--speaking in favor of the amendment.
I must say, as a general principle, I rarely, I don't think
ever, have found redundancy to be a good reason for rejecting
something. If there is any ambiguity, we ought to clear it up.
I do not think there are professions in the world less
opposed to redundancy than that of legislators and lawyers. And
when any of us objects to something on the grounds of
redundancy, I am inclined to think that it is not a full
explanation. And I want to talk about the importance of the
gentleman's amendment and respond to some of the things that
were said before.
The gentleman from Illinois, the former Chairman, spoke
with his usual eloquence, but I have to say not with his usual
relevance. Of course, we welcome the religiously motivated
people who want to help. I want to be very clear. I have,
throughout my public career, benefitted enormously, and I'm
proud of my work with them. The archdiocese of Boston has had a
housing program for as long as I can remember that's
extraordinarily successful, and I'm very pleased, now that I'm
the ranking Democrat on the Housing Subcommittee, to be able to
work with them even more. Of course, they do good work, but
they have never felt that they had to discriminate in the
hiring of architects. They never felt that they had to
discriminate in the hiring of developers, nor did they think
that having to hire architects without regard to the
architect's religion somehow destroyed the cohesion of the
Catholic Church, somehow undermined the ability of the
archdiocese to be a faith community, and that's what I find
troubling about this. There are two aspects of it.
First, this bill assumes, it seeks a significant expansion
of the extent to which faith-based organizations are the
vehicle for Federal funding. Let's be very clear. The notion is
that they are an underutilized resource. The problem is that if
you simultaneously substantially increase their role in the
provision of the services and allow them to discriminate based
on religion in hiring people to perform those services, you now
have a significant impediment to people who may not be
religious or who may be of a very minority religion to getting
hired. You're no longer talking about some incidental thing.
The goal of this is to make faith-based institutions a major
source of service delivery, all the more reason than not to
tell them to discriminate in the hiring for the nonreligious
aspects of this.
Secondly, I'm disturbed by the implications of what we've
heard. The suggestion is--the statement is that somehow it is
deleterious to the very purpose of a religious organization for
its members to have to hire nonbelievers in their religion to
do nonreligious things. I urge my colleagues to think about
this. What we are doing is encouraging a kind of religious
segregation that does not serve religion well.
Yes, people of common religion ought to be able to come
together undisturbed in their worship services. They ought to
be able to hire people to perform these religious services
undeterred by any law. They ought to be, when motivated, coming
together to provide this service. But the notion that somehow,
when they come together, when they use their institution as the
locus with Federal funding providing, providing this service,
if they are joined by people of different religions, that
somehow is deleterious to them, is a very troubling thought.
Now, people have said, ``Well, suppose it's someone who is
hostile.'' That's a different story. If you came in with a
tailored piece of language that said, ``People need not put up
with people who are going to be in total disagreement,'' that's
a different set of circumstances. That's not this bill. This
bill says, and we've heard justifications, well, you know, if
you're a Baptist, you shouldn't have to associate with a
Catholic or an Episcopalian in providing the social service. If
you're a Jew, people have said, ``Well, a Jew shouldn't have to
have a right wing fundamentalist serving the soup.'' No, I
think that's quite wrong.
Indeed, people talk about our congressional offices. Our
congressional offices, of course, are different than religions,
but even there I would think it wrong, when my office was
hiring someone, to perform a service unrelated to my election,
cleaning my office, doing these sorts of things, no, I don't
believe I should be allowed to impose a political test.
Mr. Hyde. Would the gentleman yield?
Mr. Frank. I'll yield to the gentleman.
Mr. Hyde. The gentleman is perfectly correct. In large-
scale undertakings involving architects and other professional
people, I certainly agree with the gentleman, but you have a
small operation. The institution performing the service is
entitled to its identity without being accused of being
bigoted.
Mr. Frank. No, I didn't use the word ``bigoted.'' The
gentleman from Florida did, at some point, he said he thought
it would be bigoted. But this amendment, this language in the
law does not say it only applies to small organizations. It
applies to large ones, as well, and I do not think, and here's
where I differ with my friend from Illinois, I do not think it
destroys your identity----
Chairman Sensenbrenner. The time of the gentleman----
Mr. Frank.--to have to share your space with someone of a
different religion.
Chairman Sensenbrenner.--has expired.
Ms. Hart. Mr. Chairman?
Chairman Sensenbrenner. For what purpose does the
gentlewoman from Pennsylvania seek recognition?
Ms. Hart. Move to strike the last word.
Chairman Sensenbrenner. The gentlewoman is recognized for 5
minutes.
Ms. Hart. Thank you, Mr. Chairman. This amendment really
does, in my opinion, attempt to do similar damage to the
legislation that the prior amendment attempted to do, and when
I call it damage, I do so for a reason.
The reason this bill is being advanced in the first place
is to allow churches to continue to provide these services and
get some help in providing those services as a contractor, not
to change the character of the church, but to allow this church
to participate in something they were heretofore forbidden from
participating in.
If we accept these amendments, we do one thing that I think
is completely wrong, and that is we don't allow them to retain
the character which makes them so attractive as a service
provider to begin with. There's a lot of assumptions being made
by those who support these amendments that these churches are
going to go out and hire a whole bunch of people to provide
these services, when, in reality, anyone who's ever worked with
any of the churches that provide these kinds of services are
mostly very small, small groups of congregants, some who are
paid, most who are volunteer, who are driven to provide this
service from their hearts, from a spiritual desire to serve.
Some of them will do it as a profession. These churches are not
going to be spending money wildly, hiring a whole bunch of new
people just to provide a separate service. That's my first
point.
My second point is that the Supreme Court, as I know Mr.
Graham mentioned earlier, upheld the opportunity or the
decision of these churches to hire whom they please and to make
the decision to hire people of their religion in The Presiding
Bishop versus Amos. But the Supreme Court also stated, in
Rendell Baker versus Cohen, that just because a faith-based
organization is providing a service as a contractor to the
State, they do not become State actors. They do not, therefore,
lose the status that they enjoy as a private religious
organization simply because they're getting Government money.
So those who support this amendment are asking that we
completely change the law and, in two cases, and I'm sure many
more, where it was upheld by the Supreme Court that we don't
need to require that change because if we did require that
change, there would be no reason to have this bill.
Mr. Nadler. Mr. Chairman?
Ms. Hart. Is he asking me to yield? Is that a yes?
Mr. Nadler. No.
Ms. Hart. Okay. And, finally----
Mr. Nadler. Will the gentlelady yield?
Ms. Hart. I'm just going to finish because I'm almost done.
If a Catholic School hires a teacher, they have every
right, I think most people would agree, to hire a Catholic
teacher. Many of those Catholic Schools have been also given
Government money to provide services that could be provided
someplace else. That has also been upheld. They are not forced,
then, to hire an additional teacher and not discriminate in
their hiring, that they could use the same teacher that they
have or hire another Catholic teacher. There is nothing wrong
with that. It's been supported over and over again, and I stand
by that the bill, as it's written, I think it stands by the
Constitution, it stands by decisions of the U.S. Supreme Court,
and I would reject this amendment.
Thank you, Mr. Chairman.
Mr. Nadler. Would the gentlelady yield?
Chairman Sensenbrenner. For what purpose does the gentleman
from New York, Mr. Nadler----
Mr. Nadler. Strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Nadler. Thank you.
I have listened very carefully to what Ms. Hart just said,
and I'd like to make a comment on it. It really illustrates,
the discussion really illustrates the basic problem with this
bill.
As far as I can understand this bill, and I've been
thinking about it and listening, through hearings and hearings,
there are two problems, and only two problems the bill
addresses. Both are perhaps valid problems. Both could be
addressed by very narrow changes in the law, and the problem
with the bill is that you take huge changes, way overbroad,
which raise real problems, in order to deal with the narrow
problem.
For example, let's take this question of religious
discrimination in employment. If a church, small church, large
church, whatever, gets a $20-million grant, and they're going
to hire a corps of people to administer the grant for secular
purposes, then those people should not be subjected to
religious discrimination, and you know it's for secular purpose
to run a soup kitchen or whatever, et cetera.
But we are told, what about the small church? We don't want
to change the character of the church. And what it really comes
down to is let's say you have a small church, and you get a
small grant, and the grant is going to be used for material
things, but the existing employees of the church are going to
administer the grant, are going to run the soup kitchen. The
minister, his wife, the assistant minister are going to run it,
and what they're really saying is you should not be required by
the civil rights laws, under such a condition, to say, ``Well,
we can't automatically use the existing employees of the
church. You have to conduct a job search in accordance with
title VII.'' And to that I would agree.
And this whole problem could be dealt with by a simple
amendment or a simple law that said that, if a faith-based
institution was receiving funds for a secular purpose, and if
they were not going to hire new people for that to administer
that, they could use their existing people, and that that
wouldn't constitute an exception to--that wouldn't constitute a
title VII problem, but if they hired new people, they should
have to follow whatever the requirements of nondiscrimination,
if it's for the secular purpose, but if it's not for a secular
purpose, you shouldn't be funding it in the first place.
And so I think that this whole question of employment
discrimination is way overbroad, and to the extent that there's
a real problem that's raised and that still could be addressed
by this, it can be dealt with simply by saying, as I said, and
I'm drafting such an amendment now or I hope my staff is busy
doing so, that a faith-based institution that receives a
Federal grant and that is not--can use its existing,
preexisting employees and that that would not constitute
religious discrimination because you didn't open it up for a
brand-new job search. But insofar as you do open it up to a new
job search, you shouldn't discriminate in employment.
The second question, really, is not on this amendment, but
is on the question of why we need this bill in the first place,
and that is--and I'll address it more with an amendment I have
coming up--but, basically, small churches don't have the
resources, allegedly, or the expertise to organize 501(c)(3)s
and so forth, provide the expertise, provide assistance for
small searches--small churches, rather, and if you do those two
things, I think you've really accomplished the entire purpose,
the entire proper purpose of the bill. I don't think anybody
would oppose it.
Now, if there is an improper purpose of the bill, if the
real--if some people have a purpose of encouraging religious
proselytization with Federal funds, that would not be served.
But except for that--and it shouldn't be served--but except for
that, all we need is two small changes in the law that takes
care of two problems, that when you get down to it and you
listen to everything, that's what they ultimately come down to:
How do small churches participate with Federal grants----
Ms. Lofgren. Would the gentleman yield?
Mr. Nadler.--and for the protection of the small church,
require the 501(c)(3), but give them help in forming it, give
them help in making it.
And, second of all, let the existing staff work on it
without having to go through a job search. And you do those two
things, you don't really need anything else.
Ms. Lofgren. Would the gentleman yield?
Mr. Nadler. I think Mr. Hutchinson wanted--are you asking
to yield?
Ms. Lofgren. Actually----
Mr. Nadler. Maxine?
Ms. Lofgren. I was.
Mr. Nadler. I yield to the gentlelady. I will yield to the
gentlelady.
Ms. Waters. I'm not on this one.
Chairman Sensenbrenner. I believe that the gentlelady from
California, other gentlelady from California, is trying to get
your attention.
Ms. Lofgren. I was. Just a quick point. I think that the
suggestion you've made is a useful one and addresses an issue
that we've not yet discussed here, at least so far as I can
recall, which is where you have a small grant, and absent an
ability to prevent discrimination on the basis of religion, you
might have a small church that essentially is going to
subsidize its religious mission with Government funds by hiring
the person they could not afford to hire as pastor to run the
soup kitchen to relieve the need to pay the pastor.
That is an important issue because behind all of this is
our concern, I think, I hope that it's universal about not
becoming involved in the establishment of religion. And if you
think about the tremendous diversity of religious thought in
the United States, I think it's important to all of us that we
are very careful about that. For example, in my won district, I
have many Hindus, Sikhs, Buddhists, Jane, the largest Jane
temple in North America----
Chairman Sensenbrenner. The time of the gentleman from New
York has expired.
Mr. Hutchinson. Mr. Chairman?
Chairman Sensenbrenner. For what purpose does the gentleman
from Arkansas seek recognition?
Mr. Hutchinson. To strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Hutchinson. Thank you, Mr. Chairman. I was just
reviewing the amendment that's offered by the gentleman from
North Carolina, and the debate is being centered around the
debate on the last amendment, which is the employment
discrimination exemption under title VII. The amendment, it
appears to me, goes to the use of funds from the programs which
we acknowledge in the underlying bill is not exempted and
should be offered on a nondiscriminatory basis.
It appears to me, if I'm understanding this correctly, that
the amendment is consistent with the underlying bill. The
problem is that you're asking to strike a portion of Subsection
E that is important, and if the amendment was offered, if the
language was offered at the conclusion of that whole section,
that it might be fit because I don't see it as inconsistent,
and I just wanted to----
Mr. Watt. Would the gentleman yield?
Mr. Hutchinson. I would be happy to yield to the gentleman
from North Carolina to see if I have the correct understanding.
Mr. Watt. I think you do not have the correct
understanding. What I'm trying to do, and maybe I didn't do it
artfully, but what I'm trying to do is retain the religious
exemption for core religious purposes, but prohibit
discrimination in employment, which is what title VII is, title
VII, not title VI, retain the prohibition against
discrimination in employment with Federal funds. That's the
purpose.
Mr. Hutchinson. Reclaiming my time, I will be voting
against this amendment for the reason that it strikes a portion
of the bill that is important for consistency purposes in
maintaining the exemption, but I do not see a particular
problem in the language itself that you have provided in there
because I do not believe there should be discrimination in the
use of funds from the programs----
Mr. Watt. Would the gentleman yield?
Mr. Hutchinson. Yes.
Mr. Watt. The gentleman is indicating he would support the
language if I put it at the end?
Mr. Hutchinson. If I have the correct understanding, that
is, I would, yes.
Mr. Watt. So what, what does the gentleman understand that
the language starting with the word ``and'' and ending with
``effect'' on lines 19 through 23, what purpose does the
gentleman think that that language serves?
Mr. Hutchinson. Reclaiming my time. That language refers to
any provision in such programs, and so this would be programs
that would be subject to grant application by faith-based
organizations and it's making it clear that, despite the
language of those specific programs, the religious organization
exemption, under the Civil Rights Act, is still applicable.
Mr. Watt. Would the gentleman say that one more time.
Mr. Hutchinson. When it says that any provision in such
programs, those programs are the substantive programs that the
faith-based organizations can make application to for grant
money. And so it's, it's making it clear if there was an error
in the language of those programs, that the religious
organizations' exemption, under the Civil Rights law, still
applies.
Mr. Watt. Okay. Would the gentleman yield further?
Mr. Hutchinson. I would be happy to yield further.
Mr. Watt. Would you yield to me for the purpose of a
unanimous consent request?
Mr. Hutchinson. I would be happy to yield.
Mr. Watt. I ask unanimous consent that my amendment be
revised to leave in the language on Page that it now provides
be stricken and that this language, the additional language, be
added at the end of line 23 instead.
Chairman Sensenbrenner. Well, the Chair would like to have
a clarification. If the language you are proposing to be added
at the end of line 23, just to make sure that the bill is
properly drafted and not inconsistent, wouldn't it be better to
start with nothing in this section and then continue with the
language; in other words, striking out ``provided, however,
that''?
Mr. Watt. I'm sorry. Say that again, Mr. Chairman.
Chairman Sensenbrenner. To strike ``provided, however,
that,'' and begin--capitalize ``N'' for ``Nothing,'' and then
insert the rest after line 23.
There would be nothing stricken, and in addition, I would
say nothing in this section alters the duty of a religious
organization to comply with the nondiscrimination provisions--
--
Mr. Scott. I accept the Chairman's friendly amendment.
Chairman Sensenbrenner. Okay, without objection, the
modification is agreed to. Without objection, the amendment as
modified is agreed to.
Are there further amendments?
For what purpose does the gentleman from New York seek
recognition?
Mr. Nadler. I have an amendment at the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
Mr. Nadler. Madam Clerk, the amendment that I'm offering is
the amendment by Mr. Conyers, Scott, and Nadler. I'm offering
it on behalf of Mr. Conyers, who is not here.
The one that starts, ``On page 20 at the end add the
following.''
The Clerk. Amendment by Mr. Conyers, Scott, and Mr. Nadler
to the amendment offered by Mr. Sensenbrenner.
On page 20 at the end add the following (o) Enforcement of
individual----
Chairman Sensenbrenner. Without objection, the amendment is
considered as read.
[The amendment follows:]
Chairman Sensenbrenner. And the gentleman from New York is
recognized for 5 minutes.
Mr. Nadler. Thank you, Mr. Chairman.
This amendment is--this amendment is simple and
straightforward. Where the bill offers----
Chairman Sensenbrenner. Will the Democratic staff allow Mr.
Nadler to be heard?
The gentleman is recognized.
Mr. Nadler. Thank you, Mr. Chairman.
This amendment is simple and straightforward. Where the
bill offers language designed to protect individual rights and
liberties, those persons whose rights and liberties are
supposed to be protected should be given the ability to enforce
those rights in a court.
I hope this will be noncontroversial and the majority will
choose to accept it in the spirit in which it is offered.
For weeks and weeks, this bill has been hung up over the
issues concerning separation of church and state. The Chairman,
to his credit, identified the very difficult and complex
problems that emerge when government funds religious
organizations. To his credit, he has insisted on critical
provisions protecting beneficiaries so they have the rights to
a comparable secular alternative and the right to opt out of
any religious activities.
The problem is, while the bill specifically authorizes
religious organizations to seek redress in court if their
rights under the bill are violated, there is no comparable
provision protecting the religious rights of individual
beneficiaries. So we are concerned that all of the protective
language added at the behest of the Chairman could turn out to
be an empty promise, existing in theory but not in practice.
As a result, this amendment gives individual beneficiaries
the right to seek to enforce these rights in court.
We also add the right of harmed parties to obtain
reimbursement of their attorneys fees. Obviously, most
individuals will have little ability to bring an expensive
lawsuit if they're not able to recover their legal fees. I know
of few homeless people who can afford to bring a lawsuit where
there is no secular homeless shelter available.
Now, as will all legal rights, I'm hopeful it will not be
necessary to resort to court action to obtain compliance. As
the Members know, very often the knowledge that a right is
legally enforceable itself guarantees its compliance.
There are few rights more important to this country than
religious freedom. If the right is important enough to include
in the bill, it should be important enough to be enforceable in
court.
I urge my colleagues to support this common-sense
amendment. And I yield back.
Chairman Sensenbrenner. For what purpose does the gentleman
from Ohio, Mr. Chabot, seek recognition?
Mr. Chabot. Move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Chabot. Thank you, Mr. Chairman. I won't use all the
time.
But this amounts to a lawyers' full-employment bill. We
want the funds to be used to improve the lives of people who
need services, whether it's for homeless people or whether it's
for domestic violence, whatever it might be that the faith-
based organization is providing.
We prefer the money to go to help people in need rather
than to line trial lawyers' pockets. For that reason, I oppose
the amendment.
I yield back the balance of my time.
Chairman Sensenbrenner. Will the gentleman yield?
Mr. Frank. Mr. Chairman?
Chairman Sensenbrenner. Will the gentleman from Ohio yield
to me?
Mr. Chabot. I'd be happy to yield to the Chairman.
Chairman Sensenbrenner. If you look at the amendment that
has been offered by the gentleman from New York, the defendant
in these cases would be the responsible party--religious
organization official or government agency.
This would have a chilling effect on religious
organizations signing up to provide the services that are
intended to be funded in H.R. 7, because now some trial lawyer
could file a lawsuit alleging a violation under the First
Amendment and literally bankrupt the organization before the
case even goes to trial.
I don't think we want to put in a liability section that
has every faith-based organization running away from this
program. The effect of this is extremely crippling, in terms of
broadening the base of people who can provide social services.
And I agree with the gentleman from Ohio that this very
pernicious amendment should be rejected.
Mr. Frank. Mr. Chairman?
Chairman Sensenbrenner. Will the gentleman yield back now?
Mr. Frank. Mr. Chairman?
Chairman Sensenbrenner. Will the gentleman from Ohio yield
back now?
Mr. Chabot. I yield back the balance of my time.
Mr. Frank. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Massachusetts,
Mr. Frank.
Mr. Frank. I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Frank. I yield to the gentleman from New York.
Mr. Nadler. Thank you. Thank you. I thank the gentleman
from Massachusetts.
Let me make two comments.
First of all, any trial lawyer recognizes who has the deep
pockets. He's not going to sue the church; he's going to sue
the local government.
They have the deep pockets in this situation, so I wouldn't
worry terribly much about the churches being bankrupted,
because they're not going bother suing the church. They're
going to sue the local government or the government agency
under whose aegis this was done.
Secondly, if, as Mr. Chabot says, we're worried about using
the funds--the funds being used up on lawsuits and it being a
trial lawyer's haven, why do we give the right to bring a
lawsuit to the churches? The fact is that rights are only real
if they're enforceable. And the churches, if their rights are
violated, need the power to bring a lawsuit to enforce their
rights.
But at the same, a beneficiary whose rights established in
this bill--to an alternative, a nonreligious alternative, for
example, or to various other things, not to be proselytized--if
those rights are going to be enforced and not merely be
worthless, needs the right to be able to go into court to
enforce his rights.
So it's the same on both sides. Either the churches
shouldn't have the right and neither should the beneficiaries,
to bring a lawsuit. In which case, all the provisions of the
bill would not be very important, because they would not
enforceable in law, or the churches and the beneficiaries
should have the rights to enforce their respective rights at
law lest they be merely hortatory rights.
And, again, I wouldn't worry about the churches because--
being defendants because the trial lawyers are going to sue the
jurisdiction and the--either the Federal Government or the
local government because they have the deep pockets, not the
church.
Mr. Chabot. Mr. Chairman?
Mr. Nadler. I yield back.
Mr. Frank. Is the gentleman from New York finished?
Chairman Sensenbrenner. The time belongs to the gentleman
from Massachusetts.
Mr. Frank. Did somebody want me to yield?
Mr. Chabot. Will the gentleman yield?
Mr. Frank. I'll yield to the gentleman from Ohio.
Mr. Chabot. I thank the gentleman for yielding. The bill
already provides----
Mr. Nadler. Can't hear you, sir.
Mr. Chabot. The bill already provides for lawsuits against
States and local governments for injunctive relief only. And
if--and that's, in essence, if somebody is alleged to have
violated the law. And that was on the request of county
associations, the Conference of Mayors, and other local
government entities.
And I thank the gentleman for yielding.
Mr. Frank. Does the gentleman want to me yield further?
Mr. Nadler. Yes.
Mr. Frank. I'll yield further to the gentleman from New
York.
Mr. Nadler. Well, the fact of the matter is that that's--I
think--reading that section, it says: when the rights of the
party under this section have been violated by State or local
government, may bring a civil action for injunctive relief.
That's fine as far as it goes. But, in effect, the rights
may have been violated by the people administering the grants,
and there, in that case, agents for the State or local
government. And the purpose of this amendment is to make sure
that you can sue the State and that you can get relief in that
section, too.
And by the way, if a church breaks the law, they should be
liable, although, as a practical matter, you are going to sue
the State not the church because they don't have the money.
But no one should be able to break the law and not be
subject to an enforcement action.
I yield back to the gentleman.
Mr. Frank. Mr. Chairman, having addressed what I had to say
on this subject, I yield back.
Ms. Jackson Lee. Mr. Chairman?
Chairman Sensenbrenner. For what purpose does the gentleman
from Wisconsin, Mr. Green, seek recognition?
Mr. Green. I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Green. Mr. Chairman, briefly, I wanted to commend you
for your recent statement in opposition to this amendment. I
think you put it very, very well.
This bill already provides for injunctive relief, which
will protect the rights of the aggrieved.
I think that this amendment would lead merely to an
operation of harassing faith-based organizations. This is an
effort, I think, by some, who do not believe that they can
defeat this bill, to make it as ineffective as possible by
discouraging the very organizations that we hope will take this
up.
This is to put fear into them, to make them cringe because
of the potential wide-open liability of trial lawyers, of
lawsuits. This is the last think I think we need as we're
trying to make--to reach out to community organizations and
have them be partners with us and take on so many of these
challenges that we all agree are affecting so many
neighborhoods and communities all across the country.
And, Mr. Chairman, with that, I yield back my time.
Ms. Jackson Lee. Mr. Chairman?
Chairman Sensenbrenner. For what purpose does the
gentlewoman from Texas, Ms. Jackson Lee, seek recognition?
Ms. Jackson Lee. To strike the last word.
Chairman Sensenbrenner. The gentlewoman is recognized for 5
minutes.
Ms. Jackson Lee. Mr. Chairman, I'm going to use this time
to make some general observation and comment on the basis of
Mr. Nadler's and Mr. Conyer's and Mr. Scott's amendment, as I
understand it.
And it is--it is interesting that what we're doing here in
this room is, in essence, codifying a relationship between the
State and religion that we've never done in the time of our
existence as a democracy. And so the proliferation of
amendments is simply to take us back to the purity of our
origins, which is the separation of church and state, and not
creating an established religion.
This is not to say that our religious entities have not
been coddled and nurtured and respected in this country. That
is why they have proliferated.
But what we're asking to have done here in this legislation
is to be able to establish religious entities as substitutes
for governmental social services responsibilities. All to the
best, if you will.
But as they step into the shoes a governmental entity, they
are then--and that is why you have these requests from the
national League of Cities and National Association of Counties,
because what they're suggesting is, if you're going to place
religious so-and-so to do my welfare-to-work, to do my job
training, then the question has to be, if they are substituting
for these broad-based social services, which I welcome the
concept of the good Samaritan, but then, as well, they will be
responsible, as government is responsible, in protecting the
rights of anyone who walks through their doors.
When you have a Catholic school doing the business that it
traditionally does, teaching children in the way that they
teach them and the religious beliefs that they teach them, they
are not stepping into the shoes of a governmental entity,
attempting to take the responsibilities away from the public
school system.
So this amendment speaks to the question of the rights that
anyone has in coming under the First Amendment in any aspect of
this society.
And what we're suggesting here is, because you have
codified religion, because you have put forward a legislative
initiative that establishes the involvement of the religious
community with Federal funding, the Federal Government, and
government, you now have to be subjected to the protective
rights that citizens have, be it that they are poor, that they
are homeless, that they need welfare-to-work training, they are
addicted, whatever they might be.
We have never extended the long arm of reach of the Federal
Government to the hallowed halls of sanctuaries when we have
either prayed or bowed or said our prayers on Friday night or
Saturday or 12 noon on Wednesday or high noon on Sunday. The
Federal Government has not done that.
But when you begin to codify--and I have the greatest
admiration for the spiritual, the religious community, and have
fought for their existence and their survival and welcome their
interest in being the new good Samaritan, if you will, in the
sector that deals with secular issues, such as welfare reform
and such as the addicted and HIV/AIDS. I welcome that.
But my concern is, do we realize that in the rush to make
good on campaign promises, that we're literally codifying?
I think what my dear friends on the other side of the aisle
are saying to me is that, ``No, we're not, because we're not
establishing the Muslim faith as an established religion, or
the Catholic faith.'' No, we're not, but we're giving
governmental strength, if you will, to the religious body by
its utilization of Federal tax dollars.
And, therefore, even though there is sensitivity to this,
you're opening yourself up to the responsibilities of adhering
to the Bill of Rights, to the Civil Rights Act, and to the
First Amendment and others, that governmental entities equally
have the responsibility.
If we can understand that, maybe these amendments will
bring forward the unity of purpose and we can get a resolution
of H.R. 7 that would answer the concerns of those who want to
be the good Samaritan, which I applaud and welcome.
But at the same time, there is a sense of acceptance that
we're doing something extremely extraordinary and out of sync,
if you will, with the historical and constitutional basis of
this country. We have never sought to codify religion in this
nation.
And I would argue----
Chairman Sensenbrenner. The gentlewoman's time----
Ms. Jackson Lee.--with those who say that we are not----
Chairman Sensenbrenner.--has expired.
Ms. Jackson Lee.--establishing religion.
Mr. Weiner. Mr. Chairman?
Ms. Jackson Lee. I yield back.
Ms. Lofgren. Mr. Chairman?
Mr. Weiner. Mr. Chairman?
Chairman Sensenbrenner. For what purpose does the gentleman
from New York, Mr. Weiner, seek recognition?
Mr. Weiner. To strike the last word.
And in particular----
Chairman Sensenbrenner. Recognized for 5 minutes.
Mr. Weiner. And I would like to ask you, Mr. Chairman, as
the author the bill--I'm inclined to vote against this
amendment because I believe the compliance section is
sufficient to ensure compliance.
But I believe the place where the compliance is going to be
most handy is when enforcing a person's ability to opt out. And
I just, for the purposes--so I can understand if I'm correct
about that.
The way I read, on page 14, the rights of beneficiaries, it
says that anyone who wishes to opt out, the appropriate
Federal, State, or local government entity shall provide--it
says ``shall provide''--to such individual if otherwise
eligible for such assistance, within reasonable period of time
after the date of such objection, assistance that is accessible
and is of the same value.
Am I correct in interpreting the compliance section as
allowing an individual beneficiary, if they've been denied that
right, to then sue the government agency or file a civil claim
against the government agency, meaning the city or State, to
enforce that right?
Chairman Sensenbrenner. If the gentleman would yield?
Mr. Weiner. Certainly.
Chairman Sensenbrenner. The answer to the question is yes,
but the relief is limited to injunctive relief only, to obtain
the same right pursuant to this section, and not for damages.
Mr. Weiner. Understood. And I think, frankly, that this is
appropriate.
But it does raise the question, and just so I'm sure that I
understand, if we have the following dynamic: Let's say in a
corner of rural Idaho, a church sets up a job training program.
Someone walks into that church, says, ``I don't like this job
training program because of my religious beliefs,'' it then
requires the State of Idaho, if that person is entitled to
benefits, to then set up another job training program for that
individual. Is that correct, sir?
Chairman Sensenbrenner. If the gentleman would yield?
Mr. Weiner. Certainly.
Chairman Sensenbrenner. The program does not have to be
identical to the faith-based organization, but it is required
to have a value that is not less than the value of the
assistance that the individual would have received from such
organization, meaning the faith-based organization. And this is
page 15, lines 4 through 6.
Mr. Weiner. So if--and I appreciate that.
So if--if a State or a locality does chose to set up one of
these programs, they better have allocated fundings to at least
set up two, because they might be in the circumstance that--
we've set up now an entitlement under this law for that person
to then get a separate and distinct program at least of the
same value.
Chairman Sensenbrenner. Yes. If the gentleman would yield?
Mr. Weiner. Certainly.
Chairman Sensenbrenner. The answer to that question is yes,
but again emphasizing that it does not have to be the identical
program----
Mr. Weiner. Understood.
Chairman Sensenbrenner.--that is provided in the basement
of the Baptist church in Idaho.
Mr. Weiner. Right. But it does have to be a separate and
distinct program, meaning that when you agree to set up--or the
State of Idaho agrees to set up one, they'd better have a few
shekels in their pocket to get ready to set up the second in
every case because all it takes is one objector to require the
creation of a second program.
Chairman Sensenbrenner. The answer to the gentleman's
question is yes.
Mr. Weiner. Got it. Thank you very much. I yield back my
time.
Ms. Lofgren. Mr. Chairman? Mr. Chairman?
Chairman Sensenbrenner. For what purpose does the
gentlewoman from California----
Ms. Lofgren. To strike the last word.
Chairman Sensenbrenner. The gentlewoman is recognized for 5
minutes.
Ms. Lofgren. I am interested in the compliance section as
well, and understanding that probably all of the recipients--or
at least the great majority of the recipients of services
funded under this initiative will be poor people, how these
poor people will gather the resources to bring the action to
gain the rights that are theirs under this act----
Chairman Sensenbrenner. Will the gentlewoman yield?
Ms. Lofgren. Yes, I certainly will.
Chairman Sensenbrenner. The Legal Services Corporation is
ready and eager to enforce those rights.
Ms. Lofgren. Well, what they're----
Chairman Sensenbrenner. The Appropriations Committee has
given them an increase in their appropriation.
Ms. Lofgren. The--reclaiming my time, the Legal Aid Society
is so poorly funded that they are swamped and unable to take
hardly any new cases, at least in the area where I represent.
Without the ability of attorneys fees, I think that this is
a--for most recipients--an illusory remedy.
And I think there are questions. If this bill becomes law,
there will be questions that need testing.
I was thinking, who will apply in Santa Clara County for
funds under this act? And I have no idea, but one of the
churches--the Metropolitan Church in downtown San Jose is--it's
a gay church, it's Protestant.
And if they do the daycare and a welfare mother objects, it
won't be because they're Protestants; it's because the welfare
mother may be biased against gay people.
Well, does that qualify for an exemption? I don't think so,
because it's not about religion; it's about one's bias against
gay people.
But that's going to have be tested----
Chairman Sensenbrenner. Will the gentlewoman yield?
Ms. Lofgren. Certainly.
Chairman Sensenbrenner. The decision on where to go to get
these social services rests with the individual seeking the
social services, whether it is getting social services from a
grant organization or one that accepts voucher funds.
So if the welfare mother that you're talking about doesn't
want her kids at a daycare in the basement of a church that is
predominantly gay, she just sends them someplace else.
Ms. Lofgren. Reclaiming my time, that is certainly not the
case in Santa Clara County. We have a dramatic shortage of
daycare facilities and the Department of Social Services does
provide a direction to the TANF program recipients on where to
go and where to enroll their children.
There's a huge backlog----
Chairman Sensenbrenner. Will the gentlewoman yield further?
I believe this bill would broaden the types of choices
available to qualified people in Santa Clara County on where to
go to receive social services because there would be more
qualified organizations providing them.
Mr. Frank. Would the gentlewoman yield?
Ms. Lofgren. Certainly.
Mr. Frank. Well, I think that points out what I think is a
somewhat empty promise. Yes, if you took that part of the bill
seriously, it would require a very significant expansion of
Federal funding. That is true.
To make that work, anytime the Federal Government funded a
faith-based program anywhere, it would have to fund equally in
that same area a non-faith-based program.
In other words, we've got a new doctrine here. Instead of
separate but equal, we're going to create the doctrine of
secular but equal. And anytime the Federal Government funds--to
make that work, what the gentleman just said, it promises a
great expansion.
Anytime the Federal Government funds a faith-based program,
it will, to comply with this bill, have to fund a secular and
equal other program. And I am very skeptical that the money to
do that is here.
But as one of the witnesses brought forward by the majority
said, to make that work will require a very substantial
increase in Federal funding, which I guess the biggest faith-
based initiative is to think that that Federal money is coming.
[Laughter.]
Ms. Lofgren. Well, reclaiming my time, I do believe that we
are--without an opportunity for the poor to assert their
rights, with either this amendment or something like it, that
we are going to end up with a series of very unfortunate
circumstances that will arouse the American public and their
ire.
And I see that my time is about to expire, so I yield back
what remains of it, Mr. Chairman.
Chairman Sensenbrenner. The question is on the Nadler
amendment to the Chairman's amendment.
Those in favor will signify by saying aye.
Opposed, no.
The noes appear to have it. The noes have it, and the
amendment is not agreed to.
For what purpose does the gentleman from New York seek
recognition?
Mr. Nadler. Mr. Chairman, I have an amendment at the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
Mr. Nadler. Nadler No. 1.
The Clerk. Amendment to the amendment to H.R. 7 offered by
Mr. Nadler. On page 16, strike line 9 and all that follows
through line 12 on page 17 (h) Additional protection for
organizational autonomy and accountability.
Mr. Nadler. Mr. Chairman, I ask unanimous consent to waive
the reading.
Chairman Sensenbrenner. Without objection.
[The amendment follows:]
Chairman Sensenbrenner. And the gentleman is recognized for
5 minutes.
Mr. Nadler. Thank you, Mr. Chairman.
A great deal has been said about protecting the autonomy of
religious organizations and about ensuring that these
organizations can participate in the delivery of Federal
programs without giving up that autonomy and without
undermining the delivery of those services.
The most simple way to do this and to ensure accountability
in the use of the Federal funds is to do what religiously
affiliated organizations have done for years: set up a separate
501(c)(3) corporation for the purposes of delivering those
services.
Setting up such an organization prevents any danger that
funds for distinctly religious purposes and taxpayer money that
is to be used to provide needed service, needed secular
services in the community, will be commingled and will be
diverted to an inappropriate use.
It also ensures that the governmental agency administering
the program can fully audit the activities of the grantee
without the specter of government authorities combing through
the church's books and quizzing the choir master or the
minister over the use of funds.
I think that a committee dominated by attorneys should well
understand why a separate entity is in the interest of both
autonomy and accountability and certainly in the interest of
the church.
Does anyone here think that an attorney who commingled
trust accounts with firm accounts would stay in practice very
long? We have rules against this sort of thing for very clear
and understandable reasons.
Similarly, as every Member of this Committee knows, we are
not allowed to use our office funds and any private funds in
the same activity. This would include a community event that we
may want to sponsor to promote local businesses. But once we
have started using our office funds to pay for part it, we
cannot use other funds to pick up the rest, even to pay for
those items on which we cannot spend our office funds.
That's a very strict rule. We all live by it--at least I
hope we all live by it--and for very good reason.
Does anyone here believe that setting up an additional
church bank account and then forbidding government activities
from looking beyond that account, as this bill does, could
possibly fail to lead to mischief?
People of faith are good and honorable members of our
community. But there have also been those who have abused their
standing as religious leaders. And we have no right to play
fast and loose with millions of dollars of the taxpayers' money
by ignoring the fact that some people are tempted to abuse the
trust when money is involved.
We need to legislate for the real, not the ideal, world.
Already there's been a suit filed alleging that public money
has been used to purchase Bibles for religious instruction. I
do not think any Member of this Committee would condone that.
Separating out the publicly funded activities from the
specifically religious activities has always served to protect
against this sort of problem.
Religious organizations in my district and all over the
country do this all time. We work with them to obtain public
funds for them, and they do outstanding work for the
communities that we represent.
I have heard only two arguments why we should not require a
separate entity. The first came from a minister who testified
before the Constitution Subcommittee about her community
activities. She told us that they had become the process of
setting up a 501(c)(3), and had even obtained legal assistance
to do so, but dropped the whole thing because they felt
uncomfortable with the idea.
Let me stress, her testimony was not that doing so violated
a sincerely held religious belief of her congregation.
Is that a reason to change the law and risk lack of
accountability in the use of public money?
No one is telling this church to stop engaging in their
religiously motivated efforts to do good works. No one is
telling the church that they cannot receive public money to do
so. But feeling uncomfortable with requirements of
accountability in the administration of public money is no
reason to waive those requirements.
The other reason that has been given for opposing this
requirement is that it is just too darn hard to draw up the
incorporation papers and file them with the Secretary of State.
Mind you, I've never heard this argument made by an actual
religious organization. Indeed, many of the religious
organizations that support this legislation have been setting
up 501(c)(3)s for many years.
We are told that there are small congregations out there
that just cannot muster the resources to do what daycare
centers and newsstands and other small businesses and charities
do all the time. This may be true, but my experience is that
they do just fine and usually receive volunteer legal services
from their community, just as they might receive free
electrical work from a member of the congregation.
It also raises a red flag in my mind. If an organization
cannot do the simple paperwork to set up a separate 501(c)(3),
why is the Federal Government so confident that they can
administer large sums of public money? I would take that as a
warning sign.
I do, however, agree with the Chairman, who has added a new
subsection in his mark, providing for technical assistance to
those small organizations that may have trouble complying with
this or other requirements necessary to administer a public
program.
For that reason, my amendment makes clear that they shall
be entitled to receive that assistance specifically for the
purpose of complying with this new subsection. We should be
encouraging people to do things the right way and people who
are able to deliver needed social service should not be
prevented from doing so because they lack the administrative
know-how to work their ways through the rules.
My amendment addresses that problem so that simple but
important requirement will not become an obstacle to
participation.
Chairman Sensenbrenner. The gentleman's time has expired.
And I yield myself 5 minutes in opposition to the amendment.
This amendment is not necessary. And I believe that it is
important that the religious organization have the choice on
whether or not to set up a separate 501(c)(3) organization to
operate its faith-based initiative activities or not. There is
no requirement in the Constitution.
And let me explain what the bill does.
First of all, the bill provides for limited audits by the
government agency administering the grant covered by the bill,
and these are the grant recipients under that part of the
faith-based initiative.
Religious organizations receiving funds directly from the
government must establish separate accounts for deposit of the
government funds received pursuant to a program established by
H.R. 7. Only the separate accounts consisting of funds from the
government shall be subject to audit by the government.
And that addresses the gentleman from New York's concern
that the IRS would be snooping around in the private funds that
the church uses for its religious activities.
Secondly, religious organizations providing assistance
through indirect assistance may establish a separate account
for deposit of the Federal funds. If the funds are so
segregated, only the separate accounts consisting of funds from
the government shall be subject to audit or review by the
government as a result of accepting the indirect funds.
Because indirect aid to a faith-based organization is,
quote, ``akin to the government issuing a paycheck to an
employee who in turn donates a portion of that check to a
religious institution,'' unquote, and that comes from Justice
O'Connor's concurring opinion in Mitchell v. Helms. Such aid is
permissible under the Establishment Clause and need not be
segregated into a separate account.
These are the same types of audits that the government
agency can conduct of nonreligious organizations receiving the
funds from programs covered by H.R. 7. The purpose of the audit
is to determine that the funds are being accounted for
appropriately without subjecting the church accounts that do
not contain Federal funds to government rummaging.
So the bill as drafted is consistent with the Constitution.
It is consistent with the Supreme Court decision. There should
not be a requirement that the church set up a separate
501(c)(3) in order to receive either the direct funds or the
indirect funds. But if they should choose to do so, there's
nothing in this legislation stopping them.
And I yield back the balance of my time.
For what purpose does the gentleman from North Carolina
seek recognition?
Mr. Watt. I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Watt. Thank you, Mr. Chairman.
I rise in support of Mr. Nadler's amendment, but I do want
to applaud the Chairman for his effort to dramatically improve
what was in the original bill, H.R. 7, and at least require, at
a minimum, a separate account, because that was not in the
original bill. And I think the Chairman certainly recognized
the problems with that.
But I think we really need to go further for a couple
reasons. Last week, about 50,000 Baptists descended on the city
of Charlotte in my congressional district. And they had a
discussion about the faith-based initiative, but unfortunately
I was in Washington and not able to attend.
But I sent a letter, and this is one of the two points that
I made in my letter to the ministers and other religious people
who attended that conference, that commingling of taxpayer
funds with church funds, instead of requiring a separate
nonprofit, would be dangerous for two reasons. First of all--
and I'm reading now from my letter, which I will ask unanimous
consent to submit for the record, so that you'll have the
entirety of the letter in the file.
[The letter of Mr. Watt follows:]
Mr. Watt. First, it makes it more difficult, if not
impossible, to separate the church's religious activities from
the activities being undertaken with government funds, and this
will severely threaten the required separation of church and
state.
Second--and really, this is more of a concern to me than
even the first one. Second, we think this commingling of
government and church funds will lead to serious legal, perhaps
criminal problems for some churches in the future, and that the
most likely victims of these legal problems will be small or
minority churches, or churches unwilling to support a
President's political agenda.
So basically, what I think we're on the verge of 5 years
down the road if we allow funds to go directly into church
coffers, either in separate accounts or in commingled accounts,
is a bunch of ministers and church people are going to run the
risk of being indicted, and I've expressed this opinion in the
hearings, and I think those indictments are more likely to be
against people in smaller minority, probably churches that are
not mainstream churches, because this will be used as a
mechanism for--for kind of separating the good guys or the bad
guys, possibly even separating the guys who support some
political agenda from those who don't support a political
agenda.
If we have these funds separated in a separate 501(c)(3)
organization, I think we have minimized the prospect of that
happening.
I'm the first to concede that there is not a legal
constitutional requirement to do this, but I think the
practical reasons for doing Mr. Nadler's amendment are just
powerful, and I hope that my colleagues will support this
amendment. I yield back, Mr. Chairman.
Chairman Sensenbrenner. Okay. The question is on the
amendment by Mr. Nadler to the Chairman's amendment. Those in
favor will signify by saying aye.
Opposed, no.
The noes appear to have it. The noes have it, and the
amendment is not agreed to.
For what purpose does the gentleman from New York seek
recognition?
Mr. Nadler. I have another amendment at the desk.
Chairman Sensenbrenner. The clerk will report another
amendment.
Mr. Nadler. The undesignated amendment, the one without the
number.
The Clerk. Amendment to the amendment to H.R. 7. Offered by
Mr. Nadler, Mr. Conyers, Mr. Frank, Ms. Jackson Lee and Mr.
Watt.
On page 18, line 1, insert before the period, ``or shall
such organization engage beneficiaries in such worship,
instruction, or proselytization while they are receiving such
assistance.''
[The amendment follows:]
Mr. Nadler. Mr. Chairman.
Chairman Sensenbrenner. The gentleman is recognized for 5--
--
Mr. Nadler. Can I ask unanimous consent that the first word
in the quote should read ``nor'' not ``or?''
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Nadler. Thank you, Mr. Chairman. Mr. Chairman, this
amendment makes clear that the program cannot seek to engage
participants in proselytization while they're participating in
a program. Obviously, religious organizations are free to
engage in any religious activity they wish, and participants
are certainly free to participate in religious activities
voluntarily. It is not enough to say that no funds may be used
for this--for the proselytization. If this program will allow
the program to be held in the religious institution, and allow
the program to exist side by side with other religious
activities, it would be easy to bring in someone to lead a
prayer or proselytize who is not being paid for with the public
money. We need to make clear that it simply cannot a part of
the publicly-funded activity.
We also need to make clear that voluntary participation
means just that, voluntary. There can be no cajoling or other
forms of coaxing or coercing of participants to come to the
meeting, or participate in the religious activity. If they want
to, that's fine, but I can tell you that the communities I
represent are not pleased by the idea that someone who comes in
out of the cold for help might become the target of someone who
thinks they need to be spiritually completed. I, for one, am
happy to remain incomplete and so are most of my constituents.
The idea of using government programs to convert people is
repugnant, and we should be clear that it is not permitted. No
one should have to run a gauntlet or experience the pressure of
a so-called voluntary prayer or proselytization session when
they go to receive a public service or a publicly-funded
service. What should they do, leave the room, leave early? Let
the church do its business. Let the program, the federally-
funded program do its business, and leave the participants out
of it. If they want to go to a church session, they're
obviously free to do it.
This language should discourage subtle coercion, because,
obviously, as I said before, it would be--the legislation now
prohibits the use of the Federal funds for--itself for
proselytization, but it really doesn't prohibit other funds
from being used to subject the subjects of the program to
proselytization, and they ought to. I think it's saying that
such organizations shall not engage beneficiaries in such
worship, instruction or proselytization while they're receiving
such assistance, is eminent common sense, and should be
accepted, I hope, by the majority.
I thank you. I yield back.
Chairman Sensenbrenner. For what purpose the gentleman from
Ohio seek recognition?
Mr. Chabot. Move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Chabot. Thank you, Mr. Chairman, I'll be brief.
This is, again, it's an amendment which we consider to be
unnecessary, and therefore I oppose it. The so-called opt-out
provision allows a beneficiary to, in essence, take a pass on
any parts of a social service that may include religious
instruction, worship or proselytizing, and it's already clear.
The opt-out language in the amendment reads, and I quote: ``If
the religious organization offers such an activity''--referring
to religious instruction, worship or proselytizing--``it shall
be voluntary for the individuals receiving services and offered
separate from the program funded under Subsection (c)(4).'' So
it's been----
Mr. Nadler. Would the gentleman yield?
Mr. Chabot.--I think crystal clear----
Chairman Sensenbrenner. Would the gentleman yield to me?
Mr. Chabot. I'd be happy to yield to the gentleman from
Wisconsin.
Chairman Sensenbrenner. This amendment goes even further
than that, because if you read the text of the gentleman's
amendment, a person who is a member of the church, who seeks
social services that are funded through H.R. 7, can't go to
church any more, because it said, ``nor shall such organization
engage beneficiaries in such worship, instruction or
proselytization while they are receiving such assistance.'' So
one could be an existing member of St. Anne's Catholic Church
or the First Baptist Church, qualify for social services
programs that are funded through H.R. 7 at their own church,
and then the church can't engage the beneficiaries, even though
they happen to be a pre-existing member of the church, in
worship, instruction or proselytization.
Mr. Nadler. Would the gentleman yield?
Chairman Sensenbrenner. I would hope that this amendment
would be rejected for that reason as well.
Mr. Nadler. Would the gentleman yield?
Mr. Chabot. Reclaiming my time, I'll yield to the gentleman
from New York.
Mr. Nadler. Thank you. I think Mr. Chabot is correct in
thinking that my amendment was incorrect and thinking that my
amendment simply says the same thing as the bill. It does go
further than the bill. I want to commend the ingenious legal
mind of the Chairman for conjuring up an extreme interpretation
of the amendment, way beyond what I intended or anybody else
would ever conceive of, and so his interpretation goes way
beyond the bill and the amendment.
All the amendment says, all the bill says, I should say,
the bill says you can opt out, if they're engaging in a
religious proselytization in the public service, you can opt
out and go to a different public service which doesn't engage
in that. You can leave the room. What the amendment says is
that they may not engage in proselytization or worship during
the provision of the social service. Whether or not that
particular proselytization is paid for--in other words, the
minister can't come into the room where they're doing the drug
detox and lead a prayer.
It does not say--as the Chairman implies it says--that a
member of the church who wants to go to the hot lunch program
or the drug detox program can't do so or can't go to church
again. All it does say----
Mr. Chabot. Reclaiming my time.
Mr. Nadler. Can I say one more----
Mr. Chabot. Reclaiming my time. All right, go ahead.
Mr. Nadler. All it says, a member of the church certainly
could go to the hot lunch program or the detox program, and he
can certainly continue to go to church. All this says is that
at the hot lunch program, they cannot bring in someone to say--
to lead the group in prayer. They can certainly lead the group
in prayer upstairs in the church. I yield back.
Mr. Chabot. Reclaiming my time, I'll yield to the other
gentleman from Wisconsin, Mr. Green.
Mr. Green. I thank my colleague for yielding. I don't know
who to believe here, my good friend from Ohio, or my good
friend, the Chairman, from Wisconsin. Why not just remove all
shadow of doubt and defeat the amendment, and we won't have to
deal with such problems.
Mr. Chabot. Reclaiming my time, I continue to oppose the
amendment for the reasons that I stated and the reason that the
Chairman--and I'm going to go with my Chairman, and I yield
back the balance of my time.
Mr. Frank. Mr. Chairman?
Chairman Sensenbrenner. For what purpose does the gentleman
from Massachusetts seek recognition?
Mr. Frank. Well, first, Mr. Chairman, I do want to note
that while I----
Chairman Sensenbrenner. Do you want to strike the last
word?
Mr. Frank. I want to strike the last 5 minutes, Mr.
Chairman. [Laughter.]
Mr. Frank. What I----
Chairman Sensenbrenner. Without objection, the clock is
turned back and the gentleman's recognized for the next 5
minutes.
Mr. Frank. I am aware that in our profession we give
ourselves in court the privilege of what is called pleading in
the alternative, in which you can submit to a judge two
entirely opposite theories and hope he'll pick one of them. I
want to congratulate the majority for extending that, and in
the previous amendment, arguing in the alternative, and
opposing the gentleman from New York with two totally
contradictory and opposing arguments. I guess anything that
wins.
What bothers me is--and I think the language could use some
tightening. I think the gentleman from Wisconsin made a point
that wasn't intended, probably isn't the interpretation, but I
agree that we could tighten it up a little.
And I want to get to that, to a procedural point, Mr.
Chairman. It's been my understanding that it was the intention
to complete this bill today. If that is the case, I want to
object very strenuously, and this is an example. We have not
been filibustering. We started on this very complicated subject
early. We had a break for a vote. We came back again about a
quarter to 2:00. No one thinks this bill is going to be on the
floor as soon as we come back. Rushing through this
extraordinarily complicated subject, on which a lot of people
are sort of torn, and where there are a great number of
difficult issues to deal with, in a couple of more hours on a
day like today, when we're going to be further interrupted for
votes, really does a disservice to this concept. I think people
are trying seriously to work out how we can best tap the
willingness of faith-based organizations to make an even
greater contribution to the service of social problems.
And if you insist on using the majority to force the pace
of this today, I think you will be making it harder rather than
easier. And I'll show you why I am not fully ready. We didn't
see this bill until late yesterday. It's a lot to try and deal
with in a day. I think people are making a serious set of good-
faith efforts to improve it. There are a whole lot of problems
with beneficiary discrimination that we're going to get to. I
have a problem with the opt out. I understand that. And
certainly we don't want to say that if you are a member of the
congregation and you're getting the service, you can't
participate. The Chairman has raised a point that I think has
to be clarified. But I have problems with the opt out.
Again, I talked before about separate but equal. I mean we
had a period in American history where we tried to maintain two
separate sets of institutions, one for white people and one for
black people. Now, nothing quite so invidious is being
maintained here, but we are being told that we're going to have
two separate sets of social programs. We're going to have the
religious and the secular. And, again, it was a witness brought
forward by the majority, Professor Laycock, who said this
program will be a fraud unless we have two completely equal
sets of institutions, and they have to be in each area. If you
fund a program in one area, you're going to have to fund a
secular program in that same area. And I think that, as I said,
we learned before, separate is inherently unequal.
The opt out reminds me of what people tried to do in the
cases in Oklahoma and Texas--McLoren and Sweatt are the cases--
where they said, ``Okay, we don't have a law school--we're not
going to let black people into the white law school, but we'll
send you out of State or let you go to law school in a separate
place.'' Again, we're not talking about anything as invidious
as racial discrimination, but we're talking about something
that still shouldn't be part of the policy of the United States
Government. We're going to set up and fund with Federal tax
dollars, to which you have contributed, religious
organizations, and the intent is, of the current
administration, obviously, to channel much of the social
service programming through them. And then we'll say, ``If you
don't like this, if you have a constitutionally-protected
objection to it, we'll let you opt out, we'll find you another
way.'' I am deeply skeptical that we will ever remotely
approach equality. And the notion of an opt out is just
offensive. It's, ``Okay, well, you'll have to drop out. You'll
have to go away here. You have to go there.'' It puts a burden
on the beneficiary that shouldn't be put, particularly since
many of these intended beneficiaries are not the best
organized, best integrated personalities in the world.
Now, these are very difficult issues. I raise them here
because I think the Chairman made a point about the
advisability of redrafting the gentleman from New York's
amendment, but we can't do that in a couple of hours. We can't
do that if that is the intention, to just rush this bill
through today. For what? So that the majority can say, ``Well,
we got a bill out?'' Because no one thinks it's going to the
floor right away. We've been making a good-faith effort. I
would hope that we would continue for a little while longer,
and then recess this markup, and come back, give us a chance to
look at things. I have found this useful. The gentleman from
New York, my colleague from Brooklyn, has been trying very
seriously to grapple with some of these issues.
So I have both a substantive point, which is I think that
the amendment is better than the existing bill, but I think it
could be further improved.
Of course, we have this other problem, by the way, because
of the parliamentary footing that the majority chose to use. If
in fact, we were dealing with an original text, the gentleman
from New York's amendment would be further subject to
amendment. The Chairman made a point, and I think it could have
been done.
Chairman Sensenbrenner. The gentleman's time has expired.
Mr. Frank. That's now been preempted parliamentarily.
Mr. Scott. Mr. Chairman, Mr. Chairman?
Chairman Sensenbrenner. For what purpose the gentleman from
Virginia seek recognition?
Mr. Scott. Move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Scott. And I'd like to inquire from the Chairman,
whether or not the legislative intent of the language on page
17, line 24--or I guess beginning at line 20, says that no
funds provided through a grant shall be expended for sectarian
worship--sectarian instruction, worship or proselytization, and
if the religious organization offers such activity, it should
be voluntary for the individuals receiving the service, offered
separate from the program. Whether that means that during the
government-funded program there should be no worship,
proselytization, sectarian instruction by volunteers or
otherwise, and any religious activities would be totally
separate and apart from--and voluntary--separate and apart from
the government program? Is that----
Chairman Sensenbrenner. The answer to the question is yes.
Mr. Scott. Thank you.
Chairman Sensenbrenner. That's what it says. The question
is on the Nadler amendment to the Chairman's amendment. Those
in favor will signify by saying aye.
Opposed, no.
The noes appear to have it. The noes----
Mr. Nadler. rollcall, Mr. Chairman.
Chairman Sensenbrenner. rollcall is ordered. The question
is on agreeing to the amendment offered by the gentleman from
New York, Mr. Nadler, to the amendment offered by the Chairman.
Those in favor will, as your names are called, answer aye,
those opposed no, and the clerk will call the role.
The Clerk. Mr. Hyde?
Mr. Hyde. No.
The Clerk. Mr. Hyde, no. Mr. Gekas?
[No response.]
The Clerk. Mr. Coble?
[No response.]
The Clerk. Mr. Smith?
[No response.]
The Clerk. Mr. Gallegly?
Mr. Gallegly. No.
The Clerk. Mr. Gallegly, no. Mr. Goodlatte?
[No response.]
The Clerk. Mr. Chabot?
Mr. Chabot. No.
The Clerk. Mr. Chabot, no. Mr. Barr?
[No response.]
The Clerk. Mr. Jenkins?
[No response.]
The Clerk. Mr. Hutchinson?
Mr. Hutchinson. No.
The Clerk. Mr. Hutchinson, no. Mr. Cannon?
Mr. Cannon. No.
The Clerk. Mr. Cannon, no. Mr. Graham?
Mr. Graham. No.
The Clerk. Mr. Graham, no. Mr. Bachus?
[No response.]
The Clerk. Mr. Scarborough?
Mr. Scarborough. No.
The Clerk. Mr. Scarborough, no. Mr. Hostettler?
Mr. Hostettler. No.
The Clerk. Mr. Hostettler, no. Mr. Green?
Mr. Green. No.
The Clerk. Mr. Green, no. Mr. Keller?
[No response.]
The Clerk. Mr. Issa?
Mr. Issa. No.
The Clerk. Mr. Issa, no. Ms. Hart?
Ms. Hart. No.
The Clerk. Ms. Hart, no. Mr. Flake?
[No response.]
The Clerk. Mr. Conyers?
[No response.]
The Clerk. Mr. Frank?
Mr. Frank. Aye.
The Clerk. I'm sorry? Mr. Frank?
Mr. Frank. Aye.
The Clerk. Mr. Frank, aye. Mr. Berman.
[No response.]
The Clerk. Mr. Boucher?
[No response.]
The Clerk. Mr. Nadler?
Mr. Nadler. Aye.
The Clerk. Mr. Nadler, aye. Mr. Scott?
Mr. Scott. No.
The Clerk. Mr. Scott, no. Mr. Watt?
Mr. Watt. Aye.
The Clerk. Mr. Watt, aye. Ms. Lofgren?
[No response.]
The Clerk. Ms. Jackson Lee?
Ms. Jackson Lee. Pass.
The Clerk. Ms. Jackson Lee, pass. Ms. Waters?
Ms. Waters. Aye.
The Clerk. Ms. Waters, aye. Mr. Meehan?
[No response.]
The Clerk. Mr. Delahunt?
[No response.]
The Clerk. Mr. Wexler?
[No response.]
The Clerk. Ms. Baldwin?
Ms. Baldwin. Aye.
The Clerk. Ms. Baldwin, aye. Mr. Weiner?
Mr. Weiner. No.
The Clerk. Mr. Weiner, no. Mr. Schiff?
Mr. Schiff. No.
The Clerk. Mr. Schiff, no. Mr. Chairman?
Chairman Sensenbrenner. No.
The Clerk. Mr. Chairman, no.
Chairman Sensenbrenner. Are there additional Members in the
room who desire to cast or change their vote? The gentleman
from Pennsylvania?
Mr. Gekas. No.
The Clerk. Mr. Gekas, no.
Chairman Sensenbrenner. Gentleman from North Carolina?
Mr. Coble. No.
The Clerk. Mr. Coble, no.
Chairman Sensenbrenner. Gentleman from Georgia?
Mr. Barr. No.
The Clerk. Mr. Barr, no.
Chairman Sensenbrenner. Gentleman from Tennessee?
Mr. Jenkins. No.
The Clerk. Mr. Jenkins, no.
Chairman Sensenbrenner. Gentleman from Alabama?
Mr. Bachus. No.
The Clerk. Mr. Bachus, no.
Chairman Sensenbrenner. Gentleman from Florida?
Mr. Keller. No.
The Clerk. Mr. Keller, no.
Chairman Sensenbrenner. Gentleman from Arizona?
Mr. Flake. No.
The Clerk. Mr. Flake, no.
Chairman Sensenbrenner. Gentleman from Florida?
Mr. Wexler. Aye.
The Clerk. Mr. Wexler, aye.
Chairman Sensenbrenner. Further Members who wish to cast--
the gentlewoman from Texas.
Ms. Jackson Lee. How am I recorded?
The Clerk. Ms. Jackson Lee, pass.
Ms. Jackson Lee. Aye.
The Clerk. Ms. Jackson Lee, aye.
Chairman Sensenbrenner. Further Members who wish to cast or
to change their votes? If not, the clerk will report.
The Clerk. Mr. Chairman, there are 7 ayes and 22 nays.
Chairman Sensenbrenner. And the amendment is not agreed to.
Are there further amendments to the amendment?
Mr. Scott. I have an amendment at the desk, Mr. Chairman.
Chairman Sensenbrenner. The gentleman from Virginia, Mr.
Scott.
Mr. Scott. Mr. Chairman, I have an amendment at the desk,
No. 6.
Chairman Sensenbrenner. The clerk will report the Scott
amendment No. 6.
The Clerk. Amendment to the amendment to H.R. 7, offered by
Mr. Scott and Ms. Waters.
On page 10, line 10 strike ``paragraph-'' through----
Mr. Scott. Mr. Chairman----
Mr. Chabot. Mr. Chairman, reserving a point or order.
Chairman Sensenbrenner. A point of order is reserved. The
gentleman from----
Mr. Scott. Move that reading be waived.
Chairman Sensenbrenner. Without objection, the reading of
the amendment will be waived and the gentleman from Virginia is
recognized for 5 minutes.
[The amendment follows:]
Mr. Scott. Mr. Chairman, this amendment that I'm offering
with the gentlelady from California simply prevents charitable
choice rules to applying to programs under the Elementary and
Secondary Education Act. Both the Senate and House recently
passed, by overwhelming majorities, bipartisan education bills.
Charitable choice was not considered by either the House or the
Senate authorizing Committees, nor was it debated on the House
or Senate floors, because doing so would have jeopardized an
otherwise bipartisan bill. As controversial as charitable
choice is in the social service context, and even more so when
applying it to elementary and secondary programs. For the first
time ever, H.R. 7 would establish direct grants to pervasively
sectarian institutions, including private religious schools, to
run elementary and secondary programs. The courts have not even
decided the constitutionality of vouchers in situations like
this, an indirect aid scenario, and here we are immediately
providing direct aid to these institutions.
Charitable choice is not needed for churches and other
houses of worship to participate in these programs, so long as
they comply with civil rights laws. But the meager protections
that are in charitable choice for adults, are simply inadequate
when running programs for children. The provisions prohibiting
proselytization during government services does not go far
enough when we deal with children. The law has consistently
differentiated between children and adults, for example, when
we talk about prayers. Children are more susceptible to
coercion, and so we can have city council approved prayers at
official ceremonies involving adults, but we can't have school-
sponsored prayers dealing with children. Here children
represent a truly captured audience, and even proselytization
that occurs outside of a program may cross the line,
particularly when parents are not consulted or informed.
Now, I would like to add that the language providing
alternatives is particularly unrealistic in a school situation,
given the huge demands for these programs and the current
system's inability to meet that demand. The quote,
``alternatives'' available to children are particularly
obnoxious because all of the normal children would go to one
program, while the one or two children belonging to another
religion would have to be separated and relegated to another
room.
I'd like to note that the original charitable choice bill
introduced by then Senator Ashcroft, covered just about
everything except elementary and secondary education programs.
This amendment is supported by the National Education
Association, the American Federation of Teachers, the American
Association of School Administrators, and I'd like to submit
their letters of support for the record.
Chairman Sensenbrenner. Without objection.
Mr. Scott. I yield back.
[The material referred to follows:]
Chairman Sensenbrenner. The gentleman from Ohio insist upon
his point of order?
Mr. Chabot. I'll withdraw my point of order, Mr. Chairman.
Chairman Sensenbrenner. Does the gentleman seek
recognition?
Mr. Chabot. I do. I move to strike the last word.
Chairman Sensenbrenner. The gentleman's recognized for 5
minutes.
Mr. Chabot. Thank you, Mr. Chairman. I'll be brief.
I oppose the amendment. The amendment in essence would
eliminate adult GED and after-school programs from coverage,
and these are very important programs that provide very
important services to significant people within our Nation, and
should not be excluded. The Supreme Court has upheld direct
government funding to elementary schools, provided that the
proper monitoring procedures are in place. So for those and
other reasons, we oppose this amendment.
Mr. Weiner. Would the gentleman yield for a question? Would
the gentleman yield for a question?
Mr. Chabot. I'd yield.
Mr. Weiner. I'm predisposed to oppose the amendment as
well, but the gentleman, in his explanation, offers an
interesting question. What if you have an after-school program,
you have a student or say two students who opt out of it?
According to the bill, they have to be provided with a program,
an alternative that has a value that is not less than the value
of the assistance that the individual would have received from
such organizations. How--how do you, as the Chairman of the
Subcommittee, see that working? Part of the value of an after-
school program is you are hanging out with a bunch of other
children, you have different rooms to travel in, you have a
basketball court in one room and arts and crafts, a tutoring
program. Do you envision an after-school program being
constructed of the same value, meaning you have a gym with one
kid running around, you have a tutoring program where the tutor
waits to see if that kid wants to stop by, a wicker workshop in
the next room, seeing if maybe that fellow wants to run in
there. How do you conceive of the opt-out program working in a
construct of the underlying bill?
Mr. Chabot. Will the gentleman yield?
Mr. Weiner. Sure, it's your time.
Mr. Chabot. I thank the gentleman for yielding. The
recipient clearly has the option, if they object to a religious
program providing that service, to go to either another
religious program, or secular program----
Mr. Weiner. Right.
Mr. Chabot. And that will be determined on a case-by-case
basis as to whether it's been appropriate and whether it's of
comparable funding, and they're entitled to that under this
bill.
Mr. Weiner. Will the gentleman yield further? Will the
gentleman yield further?
Mr. Chabot. It's your time.
Mr. Weiner. Actually, it's not. It's your time, but I
appreciate it.
Mr. Chabot. I'll yield.
Mr. Weiner. In Cincinnati, in your district, in Brooklyn,
in mine, you can't shake a stick without hitting an after-
school program. Thank goodness there are plenty of alternatives
around. But the explanation for why this is needed, we've
also--we've always been pointed to the parts of our community
that are served by churches that are sometimes not in big
cities. Let's say it's a corner of rural Idaho that has an
after-school program set up in the local Baptist church in the
basement. They have an after-school program. Someone in rural
Idaho who's not of that faith feels uncomfortable, or a child
doesn't want to go to that after-school program. What do you
envision--how is this actually going to work on the ground? You
say it has to be something of equal value. How do you replicate
that in a community that has no other after-school programs
because it also has to be accessible? I'm curious. In the real
world, in that real world example, how would you envision the
bill working?
Mr. Chabot. Reclaiming my time.
Mr. Weiner. Certainly.
Mr. Chabot. I think the gentleman raises a very important,
very interesting point. This is something that he and I and Mr.
Green had an opportunity to discuss on the floor a bit. I don't
know that we're ever going to come to a conclusion which is
satisfactory to the gentleman, but we're going to--you know,
you have to look at it. You mentioned Idaho as an opportunity,
a rural area. It may be a little bit more difficult there than
it might be in a large city, to provide a comparable service,
but that's something that's going to have to be worked out. And
ultimately we may end up in the court in determining how this--
injunctive relief--not for money damages, but for injunctive
relief--but this is again something that we've had for some
time.
Mr. Weiner. But what do you----
Mr. Chabot. Under Welfare Reform--under Welfare Reform,
we've had this, for example, since 1996, and this is not new
law, it's an expansion of existing law, in essence, and I'd be
happy to continue to yield to the gentleman.
Mr. Weiner. Well, certainly. But putting aside the
litigation, what do you envision? I mean, you're a supporter of
the bill. It was your Subcommittee and you're an expert in
this. What do you envision in that case, and what's the dream
Chabot scenario? How does it work out? Do we really--are going
to have to create? Is that rural Idaho community going to have
to create--I mean, what do you think is going to happen, I'm
asking?
Mr. Chabot. Reclaiming my time, I cannot, with great
candor, determine exactly what the program in Idaho is going to
do, nor should I be the one that should make that
determination. As our former Chairman, Mr. Hyde, mentioned,
there's an army of people out there that want to provide
services for the right reasons. These are people of goodwill
who really care about helping underprivileged children, about
helping homeless children, about providing after-school care, a
whole range of activities out there that our country needs in
great amounts for all kinds of people for all kinds of reasons.
And we're trying to provide the resources to many groups and
organizations and faith-based organizations that have not,
unfortunately, been able to take advantage of this and provide
those services for some time. We're going to have to see in
practice how this actually works, and they're going to have to
work within the constraints and the confines of this law
So again, I commend the President for putting this program
forward, and I commend this body for debating this issue in an
intelligent manner and trying to craft good legislation, but I
can't tell you exactly what it's going to look like in Idaho,
and I yield back the balance of my time.
Mr. Weiner. Would the gentleman yield?
Mr. Frank. Mr. Chairman? Mr. Chairman?
Chairman Sensenbrenner. For what purpose does the gentleman
from Massachusetts seek recognition?
Mr. Frank. To strike the last word, Mr. Chairman.
Chairman Sensenbrenner. The gentleman's recognized for 5
minutes.
Mr. Frank. I think we have gotten to one of the serious
problems with this bill. The gentleman from Brooklyn was taking
the argument seriously, and he's being told, well, we don't
know how it's going to work out. I've asked to be distributed
an excerpt from the transcript of the hearing that the
gentleman from Ohio's Subcommittee had with Professor Laycock
from the University of Texas, who was here at the request of
the majority to be a strong witness in favor of this program.
And Professor Laycock says, on page 48 in what's been given
out, ``We will not put religious conditions on the money to the
provider and we will protect the beneficiary by really making
available an alternate provider. You have got to really do that
or this program is a fraud.''
And on the next page, 64, actually my name is omitted, it
begins with me. I ask him about this, and he says again--I say,
``Do we have to have in place a complete alternative set of
programs that meet the condition?'' And Mr. Laycock says, at
line 1510, ``If you read my written testimony, you will see I
said yes, this is where the real issue is. How do we make this
happen? This is a religious liberty bill, it is not a funding
bill. The higher the levels of funding the better this will
work.''
Well, he says you have to have a complete parallel set, but
what bothers me is, I then turn to Mr. Esbeck, representing the
administration, the Justice Department, and I asked him if he
agreed with Mr. Laycock that you had to have the complete set
of alternatives, and he said no. That's why I do not believe
that this promise is going to be kept. Indeed it isn't even
being made by the administration. I can't charge them with
breaking a promise. They won't make it.
Here's Mr. Esbeck on page 66, lines 1527: ``let's say it is
a drug rehabilitation service, if they have one objector, they
could simply employ a clinical psychologist to deliver the
services to that one particular individual.'' We're now going
to have the social service delivered by the one individual.
I said, well, what if there were 6 or 7 or 11? The
administration has basically answered the gentleman from New
York and said, no, we're not even going to try.
And I finally asked him--and this is at the bottom of page
67--``Do you agree with Professor Laycock's characterization
that for this program to be fair and justifiable there needs to
be a substantively equal secular alternative set of programs?''
Mr. Esbeck, representing the Justice Department, the
administration witness here: ``I think in my earlier answer I
was showing you an example where that was not necessary. So I
guess the answer is no.''
The problem is that without a lot more work, given the
administration's position, we are being asked to adopt a
program that will work out, in the words of Professor Laycock,
fraudulently.
Mr. Weiner. Will the gentleman yield?
Mr. Frank. Yes.
Mr. Weiner. I just want to make a point. I mean, I think
it's also important to know that a job training program
teaching people to type, you can very easily send a typist over
to a person's home or have them meet in someone's office and
teach them to type. What troubles me about after-school
programs is the very nature of after-school programs. You can't
just remove a child from that environment and then surround
them with people----
Mr. Frank. Well----
Mr. Weiner. I'm sorry.
Mr. Frank. No, I agree with the guy, when he's saying this
context--but by the way, that's true of job training programs.
As everyone knows, job training programs don't simply teach you
the physical skill. They teach you how to get up and get there
on time. They teach you how to work with other people. Whenever
you are dealing--we are dealing here with problems that are
often behavioral, and the notion that it's equal if you just
send a clinical psychologist there, to being part of this
social setting, is wrong. And again, I am disturbed because Mr.
Esbeck, on behalf of the Bush administration, denies what seems
to many of us to be the central principle on which we've heard.
He says, no, Professor Laycock is wrong. You don't have to do
it equally.
Now, the relevance of that is this: the more you allow
religious content in the program, the more you generate the
possibility that people are going to want a separate program
which is going to cost a lot of money, which will be very
difficult with our current fiscal situation, and which Mr.
Esbeck says won't be there. So while we cannot control in this
the funding, this is an argument, it seems to me, for
diminishing the likelihood that you're going to drive people to
want that alternative. That's why some of us have supported
some of these amendments that try to preserve this right. But
fundamentally, what this transcript shows is the witness that
the majority brought forward, the professor from the University
of Texas, Mr. Laycock, says, here's what you need to make this
fair, and the Justice Department says basically, no, we're not
going to do that.
Chairman Sensenbrenner. The gentleman's time has expired.
For what purpose does the gentlewoman from California, Ms.
Waters, seek recognition?
Ms. Waters. To strike the last word.
Chairman Sensenbrenner. The gentlewoman is recognized for 5
minutes.
Ms. Waters. It was mentioned that within a few weeks ago
the House and Senate passed bills reauthorizing the Elementary
and Secondary Education Act programs. Provisions within each
bill allow community groups to compete for after-school grants
and to provide tutoring assistance to pupils attending low-
performing schools. These measures are intended to improve our
children's education.
However, neither bill included a charitable choice
amendment to establish direct grants to private religious
schools and other sectarian entities, to provide educational
services to elementary and secondary students. Such an
amendment was not even considered on the floor or in Committee,
and yet that's exactly what this bill would do. It would sneak
in direct grants to religious groups through the back door.
If this is an important aspect to educational services,
then why wasn't it discussed when we dealt with the education
reauthorization bill? I think I know why: because the authors
of the bill knew that such a provision would be very
objectionable to the Education and Workforce Committee and that
it would undergo far too much scrutiny on the floor.
Well, we must not allow such underhanded tactics.
Charitable choice is offensive and problematic enough without
adding in provisions relating to after-school and tutoring.
These provisions would again entangle the Government with
religion. To allow our Government to dole out funding to
private religious schools is to invite an inappropriate melding
of church and state.
I would like to quote from a letter I received yesterday
from the American Federation of Teachers in opposition to H.R.
7. It says in part, and I quote, ``Allowing Federal funds to
flow directly to pervasively sectarian religious organizations,
to provide Government services such as education through
charitable choice, raises serious constitutional issues
regarding the separation of church and state.''
The letter goes on to note that the bill could force
susceptible young children in education programs to listen to
religious messages that make them uncomfortable and may be
contrary to their family's religious orientation.
We here on the Judiciary Committee are very consciously
working within our jurisdictional guidelines. The authors of
this bill should be held to the same standard. These provisions
should not be in this bill, and I urge you to strike them.
Ms. Lofgren. Would the gentlelady yield?
Ms. Waters. I yield to the gentlelady from California.
Ms. Lofgren. I think that your statement is wise, and I
would like to make an additional observation about the
amendment before us.
In the example raised by the gentleman from New York, he
described an after-school program that might be located at a
church or an institution, a faith-based institution. But
oftentimes these after-school programs are actually located at
the school, and there is very limited space, and you might have
outside groups that come in and actually provide the services
on the school site.
If the Wiccans actually had the lowest-cost program and
they want to come on to the school site and provide the after-
school care, they agree not to proselytize, but they're dressed
as witches. The parents don't have another option. The kid is
at school. The kid can't go anywhere else. The school can't
accommodate an additional program. So you're going to end up
with the Wiccans and no possibility of implementing the opt-out
that is essential to even arguably making this bill
constitutional. And I thank the gentlelady for yielding.
Chairman Sensenbrenner. Would the gentlelady yield?
Ms. Waters. Let me just----
Chairman Sensenbrenner. Would the gentlelady yield further?
Ms. Waters. Reclaiming my time, I would think that my
friends on the opposite side of the aisle would really be
afraid of what has been constructed in this bill that would
allow their children to receive religious messages that do not
comport or agree with where they stand religiously in the
family. I think this is the greatest possible intrusion.
Let me just say, if you're an adult, you can tell somebody
about what offends you, you don't like it. But what do children
know? What do children know who are put in this position? We
are sending them for tutoring, for after-school programs, and
to have to encounter the possibility of being given religious
messages by people you don't know and you certainly don't agree
with. I think this is not a liberal issue. This is really not a
conservative issue. But I have heard conservatives more than
anybody else talk about protecting the right of parents to be
able to infuse the values that they care about in their
children rather than having other people interfere with that.
Chairman Sensenbrenner. The gentlewoman's----
Ms. Waters. I think this is dangerous.
Chairman Sensenbrenner.--time has expired. The question is
on the amendment offered by the gentleman from Virginia, Mr.
Scott, to the Chairman's amendment. Those in favor will say
aye. Opposed, no? The noes appear to have it.
Ms. Waters. rollcall.
Chairman Sensenbrenner. A rollcall is requested and will be
ordered. The question is on the adoption of the Scott amendment
to the Chairman's amendment. Those in favor will, as your names
are called, answer aye; those opposed, no; and the clerk will
call the roll.
The Clerk. Mr. Hyde?
Mr. Hyde. No.
The Clerk. Mr. Hyde, no. Mr. Gekas?
Mr. Gekas. No.
The Clerk. Mr. Gekas, no. Mr. Coble?
[No response.]
The Clerk. Mr. Smith?
[No response.]
The Clerk. Mr. Gallegly?
Mr. Gallegly. No.
The Clerk. Mr. Gallegly, no. Mr. Goodlatte?
[No response.]
The Clerk. Mr. Chabot?
[No response.]
The Clerk. Mr. Barr?
[No response.]
The Clerk. Mr. Jenkins?
[No response.]
The Clerk. Mr. Hutchinson?
Mr. Hutchinson. No.
The Clerk. Mr. Hutchinson, no. Mr. Cannon?
Mr. Cannon. No.
The Clerk. Mr. Cannon, no. Mr. Graham?
[No response.]
The Clerk. Mr. Bachus?
Mr. Bachus. No.
The Clerk. Mr. Bachus, no. Mr. Scarborough?
[No response.]
The Clerk. Mr. Hostettler?
Mr. Hostettler. No.
The Clerk. Mr. Hostettler, no. Mr. Green?
Mr. Green. No.
The Clerk. Mr. Green, no. Mr. Keller?
Mr. Keller. No.
The Clerk. Mr. Keller, no. Mr. Issa?
[No response.]
The Clerk. Ms. Hart?
Ms. Hart. No.
The Clerk. Ms. Hart, no. Mr. Flake?
Mr. Flake. No.
The Clerk. Mr. Flake, no. Mr. Conyers?
[No response.]
The Clerk. Mr. Frank?
Mr. Frank. Aye.
The Clerk. Mr. Frank, aye. Mr. Berman?
[No response.]
The Clerk. Mr. Boucher?
[No response.]
The Clerk. Mr. Nadler?
Mr. Nadler. Aye.
The Clerk. Mr. Nadler, aye. Mr. Scott?
Mr. Scott. Aye.
The Clerk. Mr. Scott, aye. Mr. Watt?
Mr. Watt. Aye.
The Clerk. Mr. Watt, aye. Ms. Lofgren?
Ms. Lofgren. Aye.
The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
Ms. Jackson Lee. Pass.
The Clerk. Ms. Jackson Lee, pass. Ms. Waters?
Ms. Waters. Aye.
The Clerk. Ms. Waters, aye. Mr. Meehan?
[No response.]
The Clerk. Mr. Delahunt?
[No response.]
The Clerk. Mr. Wexler?
[No response.]
The Clerk. Ms. Baldwin?
Ms. Baldwin. Aye.
The Clerk. Ms. Baldwin, aye. Mr. Weiner?
Mr. Weiner. Aye.
The Clerk. Mr. Weiner, aye. Mr. Schiff?
Mr. Schiff. Aye.
The Clerk. Mr. Schiff, aye. Mr. Chairman?
Chairman Sensenbrenner. No.
The Clerk. Mr. Chairman, no.
Chairman Sensenbrenner. Additional Members in the room who
wish to cast or change their vote? The gentleman from North
Carolina?
Mr. Coble. No.
The Clerk. Mr. Coble, no.
Chairman Sensenbrenner. The gentleman from Ohio?
Mr. Chabot. No.
The Clerk. Mr. Chabot, no.
Chairman Sensenbrenner. The gentleman from South Carolina?
Mr. Graham. No.
The Clerk. Mr. Graham, no.
Chairman Sensenbrenner. The gentleman from Tennessee?
Mr. Jenkins. No.
The Clerk. Mr. Jenkins, no.
Chairman Sensenbrenner. The gentleman from Georgia?
Mr. Barr. No.
The Clerk. Mr. Barr, no.
Chairman Sensenbrenner. Additional Members in the room who
wish to cast or----
Ms. Jackson Lee. How am I recorded, Mr. Chairman?
The Clerk. Ms. Jackson Lee, pass.
Chairman Sensenbrenner. The gentlewoman from Texas?
Ms. Jackson Lee. Aye.
Chairman Sensenbrenner. Does the gentlewoman from Texas
wish to change her vote?
Ms. Jackson Lee. I was--yes, I'd like to vote aye.
The Clerk. Ms. Jackson Lee, aye.
Chairman Sensenbrenner. If there are no further Members who
wish to cast or change their vote, the clerk will report.
The Clerk. Mr. Chairman, there are 10 ayes and 17 nays.
Chairman Sensenbrenner. And the amendment is not agreed to.
Are there further amendments?
Ms. Lofgren. Mr. Chairman, I have----
Chairman Sensenbrenner. The gentlewoman from California--I
was instructed by the Democratic staff to recognize the
gentlewoman from California next. For what purpose does the
gentlewoman from California seek----
Ms. Lofgren. I have an amendment at the desk designated the
Lofgren-Schiff amendment.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to the amendment to H.R. 7, offered by
Representative Lofgren and Representative Schiff, strike
section 104.
[The amendment follows:]
Chairman Sensenbrenner. The gentlewoman from California is
recognized for 5 minutes.
Ms. Lofgren. Mr. Chairman, we have had a lengthy and I
think useful discussion about the role of religious and the
need to protect the free exercise of religion, but there's
something else in this bill that also needs to be attended to
that I don't think is really about charitable choice at all,
and that is section 104 that this amendment would strike.
It appears to me to be written for really no other purpose
than to shield corporations from the responsibility they should
continue to have for those items or services they may
contribute or, if you look at the plain language, also rent or
charge a fee for. This bill creates such a high standard,
namely, either gross negligence or intentional misconduct, that
it almost guarantees immunity from liability for injuries or
death that could result from furnishing materials, vehicles,
real property to nonprofit agencies.
Let me just give a couple of examples. On page 3 of the
Chairman's amendment, there is a liability relief for business
entities that provide use of facilities to nonprofit
organizations, specifically when the use occurs outside of the
scope of the business or the business entity; it's limited also
that the injury or death would occur when the facility is used
by the nonprofit entity and that it's authorized by the
business.
Section (b)(2) indicates that the facility doesn't even
have to be donated to the nonprofit. It can be rented or a
profit could be made by the business for furnishing space.
Well, think about some scenarios that could be covered by
this. For example, you've got a store in a city and there's
extra room in back of the store that is rented, because times
are tough in the commercial world, to a baby-sitter, a
nonprofit baby-sitter, perhaps even a church. Now, the store
owner neglects to check the smoke detectors, and the store
owner neglects to make sure that the emergency exits are
cleared. When the facility catches fire and the 3-year-olds are
injured, the store owner would be exempt from liability for the
injuries sustained by the pre-schoolers because the conduct
involved would be mere negligence, not gross misconduct or
intentional misconduct.
Let me give another example in the motor vehicle section on
page 4. Take a corporation--it's very common. The corporations
have vans that they use for their own employees. Times are
tough in the corporate world, especially in Silicon Valley. If
a corporation decides to lease or rent that employee van to the
Girl Scouts but fails to check on the bald tires, that van
flips and incinerates the Girl Scout troop, the business that
has made a profit by providing that van to the Girl Scouts is
immune from liability for their negligence. And I can't imagine
that that's what the proponents of charitable choice wish to
do.
Finally, on page 5, there's a provision eliminating
liability for business entities providing tours of facilities.
Now, I must confess, I have thought long and hard about why
this provision would be here because this is not even limited
to nonprofits. It appears to be completely extraneous to the
whole issue that we've been discussing all day, which is faith-
based matters. It appears that if you were a factory owner and
you did a tour for salesmen, and the salesmen in the bowels of
the manufacturing facility ended up being beaned by a faulty
line, that you would be exempt from liability under this
section, although that has absolutely nothing to do with
religion. So I am just bemused by that.
I also am astonished, frankly, that in the manager's
amendment, the few sections that would carve out liability when
misconduct is a sexual offense, when misconduct is a hate
crime, when misconduct violates a Federal or State civil rights
law, when misconduct----
Chairman Sensenbrenner. The gentlewoman's time has expired.
Ms. Lofgren. I'd ask unanimous consent for an additional
minute.
Chairman Sensenbrenner. Without objection.
Ms. Lofgren. When misconduct is a crime of violence, those
have been removed in the amendment. So if you had--I know a
woman who is a psychologist who specializes in counseling child
molesters for a profit, she's in business. If she rents out the
first floor of her building to the day care and her clients
molest the children in the day care, this bill is going to
preclude any finding of liability for that negligence, and I
cannot believe that that is something that proponents of faith-
based programs would wish to do. And I yield back the balance
of my time.
Chairman Sensenbrenner. The Chair will recognize himself
for 5 minutes in opposition to the amendment.
Section 104 provides that businesses that provide in-kind
charitable contributions shall not be liable for death or
injury arising from the use of those contributions unless there
is gross negligence or intentional misconduct. The gentlewoman
spotted the fact that the original bill had a number of
instances contained in there, including hate crimes and sexual
assaults. Those are all intentional misconduct, and there is no
exemption from liability if any of the beneficiaries under
charitable choice are victims of that kind of activity.
The liability protection in the manager's amendment applies
in four instances: first, when a charity uses equipment donated
by a business; second, when a charity uses the facilities of a
business; third, when a charity uses motor vehicles or aircraft
of a business; and, fourth, when a charity takes a tour of the
facilities of a business.
This provision extends to those matters the same basic
concept that this Committee embraced for volunteers in the
Volunteer Protection Act of 1997. That bill passed this
Committee by a vote of 20 to 7. It passed the House by a vote
of 390 to 95. It passed the other body by a vote of 99 to 1 and
was signed into law by former President Clinton.
I am hopeful that we can have the same type of bipartisan
support for this provision that we had for the Volunteer
Protection Act. The basic idea is that donating something to a
charity should not be a high-risk venture. You should not have
to endure unlimited liability for ordinary negligence to be a
good corporate citizen. That type of litigation limits the good
works that charities can do.
For example, potential liability for the use of donated
motor vehicles can discourage businesses from helping kids go
on a field trip or to get to summer camp. We do not want these
kinds of good works hindered by the threat of lawsuits.
For those of you who don't like this type of protection,
we've also taken care of your concerns. All the States under
the manager's amendment are free to override the provisions of
this section and to reinstate liability laws should they
choose. I think it is unlikely that States would reject this
type of provision, but they can do so if they choose.
I yield back the balance of my time and declare the
Committee in recess----
Mr. Frank. Mr. Chairman----
Chairman Sensenbrenner.--and come back following the votes.
[Recess.]
Chairman Sensenbrenner. The Committee will be in order.
Pending at the time of the recess was the Lofgren amendment
striking section 104----
Mr. Frank. Mr. Chairman?
Chairman Sensenbrenner.--of the Chairman's mark. For what
purpose does the gentleman from Massachusetts seek recognition?
Mr. Frank. To strike the last word, Mr. Chairman.
Chairman Sensenbrenner. The gentleman's recognized for 5
minutes.
Mr. Frank. Mr. Chairman, first, I am still puzzled as to
why this bill decides that any tour of a business facility,
including one for which people pay, is a matter of faith-based.
Chairman Sensenbrenner. Will the gentleman yield?
Mr. Frank. Yes.
Chairman Sensenbrenner. I would ask unanimous consent that
the Sensenbrenner amendment be modified to delete that section.
Mr. Frank. I object, Mr. Chairman--oh, delete the whole
section?
Chairman Sensenbrenner. No. To delete the section relating
to tours.
Mr. Frank. Tours. No objection.
Chairman Sensenbrenner. Without objection, so ordered.
Mr. Frank. Well, I thank the Chairman for that. I still--
I'm a little frustrated because I am denied the explanation of
how it got in here in the first place. I think that would be a
more interesting tour than those for which you were going to
give people liability. But the gentleman's point illustrates
the absolute unreasonableness of the apparent decision by the
House leadership that this Committee must finish this bill. I
believe that the Chairman has played up until now a very
constructive role in trying to improve this bill, and I
appreciate what he did. I realize that matters of scheduling
are not entirely autonomous ones for the Committee.
But precisely because the Chairman was working so hard to
get some revisions, we on our side of the aisle did not see
this bill until yesterday afternoon. This is a very complex
bill. It has a lot of references to other statutes. It is a
subject on which a number of Members feel favorably inclined in
some ways, subject to some amendments. And because of the way
things have turned out, we are going to be asked to pass this
bill without it being given adequate consideration.
It is now a time when many Members have left on both sides.
I have had Members on both sides say to me, gee, I got a plane
to catch. No doubt that the majority will be able to muster a
quorum, at least a working quorum, to shut down debate on the
bill if they can't quite get it voted out. And those who are
insisting that this be done--I don't impute this desire to the
Chairman. Those who are insisting that this be done do this
whole bill, this whole concept, a disservice.
Again, the Chairman just agreed, we needed an amendment
here. The Chairman earlier pointed out what I thought was a
flaw in the wording of the amendment offered by the gentleman
from New York. I've got amendments to deal with other parts of
this bill. The beneficiaries section has some serious problems.
One of the things that's clear to me, if you look at this
bill, is that it is a license for people to discriminate
against gay and lesbian people. Beneficiaries, for instance,
are protected against discrimination based on some laws, but
they are explicitly not protected against discrimination based
on State laws, and that is an invitation for people to
discriminate based on sexual orientation.
I'd like to be able to explore these things, but what we're
going to be dealing with now--members are barely here, even
after they've been asked, some Members will be leaving, Members
are under pressure to get out of town. A complicated bill
involving important constitutional and policy questions is
being rushed through, and why? It cannot come to the floor of
the House for 10 days and, indeed, will not come to the floor
of the House very soon. The rational thing to do would be to
resume on this bill, even on the Tuesday. Members had
originally been told there would be voted on Monday. We could
come back on Tuesday in July and have the 4 or 5 hours left to
consider this. Instead, consideration of this bill will be
truncated. Important questions will not be dealt with fairly.
It will be voted out under pressure. A bill that was
substantially revised, to the good--and I appreciate the
revisions--but revised so late given the timing of the markup
that we did not have adequate chance to prepare.
Now, that's what you do if you were trying not to resolve
an important public policy issue, but if you're trying to get
some political points because you think you're in trouble.
Obviously, things have not been going well for the
administration in their mind, and so they felt that they needed
before this recess to have a success to talk about. And the
sole purpose of this rushed and truncated markup on a bill
which we have not had adequate chance to study is so the
administration can recoup a little of what it has lost. And it
does this at the expense of the effort to build a consensus
behind this bill.
We were prepared to be serious about this, to debate it. We
were working our way through the issues. We got through the
employment issue. We were going to get into the beneficiary
issue. We've made also serious progress in dealing with the
question of the proselytization. But that now gets--that plug
gets pulled because no one thinks between now and whatever time
the deadline will come you're going to get adequate
consideration given all these constraints.
I really very much regret that this has happened.
Chairman Sensenbrenner. The time of the gentleman has
expired.
The gentleman from Virginia, Mr. Scott?
Mr. Scott. Move to strike the last word.
Chairman Sensenbrenner. The gentleman's recognized for 5
minutes.
Mr. Scott. Mr. Chairman, I would hope that we would adopt
this amendment so we could give coherent attention to the
issue. This is a tort reform issue, not a charitable choice
issue. As the Chairman has pointed out, we have good Samaritan
laws that might achieve bipartisan consensus, but we can't do
that in the middle of a charitable choice debate. There are
some provisions that involve motor vehicles, for example, where
we usually exempt motor vehicle liability because there's
usually insurance. We don't have time to really do this, and I
would hope we'd accept this amendment and try to deal with the
issue on another day.
I yield back.
Ms. Lofgren. Would the gentleman yield?
Mr. Scott. I yield to the gentlelady from California.
Ms. Lofgren. I think your point in terms of the insurance
issue is a good one, and I wanted to make just two additional
comments about the amendment and also the deletion of the
carve-outs in the underlying bill.
The Chairman is obviously correct that a sexual offense is
an intentional act and, therefore, would not be--would be
covered under the underlying bill. But the point is that
liability can attach to someone other than the tort feasor in
the case of some sexual attacks, for example, the famous case
where negligence in the lock that allowed the hotel guest to
be--to have a room broken into and to be raped. And there was
negligence found on the part of the hotel.
If, for example, you have--and I gave an earlier example of
someone who I actually happen to know who is a psychologist,
whose specialty is child molesters. If that person rents space
in the bottom of her building and then hires as an attendant or
a handyman a registered child molester, and the child molester
molests the children in the downstairs basement, you can--sure,
you can go ahead and sue the child molester, but chances are he
is going to be judgment-proof. And it's the negligence of the
owner of the building that really needs to be called into
account, number one, so that there can be remedial funds made
available to counsel the children who have been damaged; and,
number two, there's a reason for tort law, which is to hold
people to ordinary standards of care. And the idea isn't just
to tag people once they've messed up, but to have people think
and not do stupid things so that we live in a safer
environment.
I think that the elimination of the sex provision and the
crime of violence provision and the hate crime provision is a
serious mistake. I object to the whole section, but at least we
ought to have those carve-outs because I think they are serious
issues.
I thank the gentleman for yielding to make those points.
Chairman Sensenbrenner. The gentleman yields back.
The question is--the gentleman from New York, Mr. Nadler.
Mr. Nadler. Thank you, Mr. Chairman. I want to simply say
that I agree with the amendment of the gentlelady from
California. And having said that, I want to associate myself
with the remarks of Mr. Frank. I am very disturbed by the rush
job of this bill. As Mr. Frank said, we first saw this bill or
the Chairman's mark late last--oh, 6, 7 o'clock yesterday, I
think it was. And there's obviously not been a proper time--
enough time to do a proper job of analyzing this and going
through it.
Now, of course, given the way we rushed through the tax
bill, that may be a pattern.
Let me say one other thing, though. There are rumors afloat
today that there may be a move by the Chairman to move the
previous question at some time tonight. I earnestly hope that's
not the case. In the 9 years I've been on the Committee, I
recall three occasions--I recall two occasions when the
previous question was called. The previous question, of course,
eliminating the right of the minority or, for that matter,
perhaps majority Members to offer amendments. Once was during
the Contract on America, I forget which bill it was, and the
Chairman at that time was apologetic and in effect said he had
no choice, he had been instructed to get the bill out that day
by the Speaker or whoever. But we had had 4 or 5 days on the
bill.
Earlier this year, you, sir, called the previous question.
And maybe there was a reason in that one Member of the
Committee was being obstreperous in offering dilatory--using
many dilatory tactics. Nobody's doing--nobody's doing that
today. If we simply do not have enough time to go through all
the amendments today, a second day of markup on a bill of this
nature is not too much to ask. It would be a gross violation of
comity between the parties and of the traditions, I think, at
least in the years that I've been here, of the Committee to
move the previous question. And I hope that the Chairman won't
do it, and I hope that it will not be necessary for the
minority, if he should do it, to engage in a lot of dilatory
tactics for the rest of the session.
Thank you, Mr. Chairman.
Chairman Sensenbrenner. The question is on the Lofgren
amendment to the Chairman's amendment. Those in favor will
signify by saying aye. Opposed, no? The noes appear to have it.
Ms. Lofgren. rollcall, Mr. Chairman.
Chairman Sensenbrenner. A rollcall is requested. The
question is on agreeing to the Lofgren amendment to the
Sensenbrenner amendment. Those in favor will, as your names are
called, answer aye; those opposed, no; and the clerk will call
the roll.
The Clerk. Mr. Hyde?
Mr. Hyde. No.
The Clerk. Mr. Hyde, no. Mr. Gekas?
Mr. Gekas. No.
The Clerk. Mr. Gekas, no. Mr. Coble?
Mr. Coble. No.
The Clerk. Mr. Coble, no. Mr. Smith?
[No response.]
The Clerk. Mr. Gallegly?
[No response.]
The Clerk. Mr. Goodlatte?
Mr. Goodlatte. No.
The Clerk. Mr. Goodlatte, no. Mr. Chabot?
[No response.]
The Clerk. Mr. Barr?
Mr. Barr. No.
The Clerk. Mr. Barr, no. Mr. Jenkins?
[No response.]
The Clerk. Mr. Hutchinson?
Mr. Hutchinson. No.
The Clerk. Mr. Hutchinson, no. Mr. Cannon?
[No response.]
The Clerk. Mr. Graham?
Mr. Graham. No.
The Clerk. Mr. Graham, no. Mr. Bachus?
[No response.]
The Clerk. Mr. Scarborough?
[No response.]
The Clerk. Mr. Hostettler?
Mr. Hostettler. No.
The Clerk. Mr. Hostettler, no. Mr. Green?
Mr. Green. No.
The Clerk. Mr. Green, no. Mr. Keller?
Mr. Keller. No.
The Clerk. Mr. Keller, no. Mr. Issa?
[No response.]
The Clerk. Ms. Hart?
Ms. Hart. No.
The Clerk. Ms. Hart, no. Mr. Flake?
[No response.]
The Clerk. Mr. Conyers?
[No response.]
The Clerk. Mr. Frank?
Mr. Frank. Aye.
The Clerk. Mr. Frank, aye. Mr. Berman?
[No response.]
The Clerk. Mr. Boucher?
[No response.]
The Clerk. Mr. Nadler?
Mr. Nadler. Aye.
The Clerk. Mr. Nadler, aye. Mr. Scott?
Mr. Scott. Aye.
The Clerk. Mr. Scott, aye. Mr. Watt?
Mr. Watt. Aye.
The Clerk. Mr. Watt, aye. Ms. Lofgren?
Ms. Lofgren. Aye.
The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
Ms. Jackson Lee. Aye.
The Clerk. Ms. Jackson Lee, aye. Ms. Waters?
[No response.]
The Clerk. Mr. Meehan?
[No response.]
The Clerk. Mr. Delahunt?
[No response.]
The Clerk. Mr. Wexler?
[No response.]
The Clerk. Ms. Baldwin?
[No response.]
The Clerk. Mr. Weiner?
[No response.]
The Clerk. Mr. Schiff?
Mr. Schiff. Aye.
The Clerk. Mr. Schiff, aye. Mr. Chairman?
Chairman Sensenbrenner. No.
The Clerk. Mr. Chairman, no.
Chairman Sensenbrenner. Are there additional Members--the
gentleman from California?
Mr. Gallegly. No.
The Clerk. Mr. Gallegly, no.
Chairman Sensenbrenner. Are there additional Members who
desire to cast their votes or to change their votes? If not,
the clerk will report.
The Clerk. Mr. Chairman, there are 7 ayes and 13 nays.
Chairman Sensenbrenner. And the amendment is not agreed to.
Are there further amendments?
Mr. Frank. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Massachusetts,
Mr.----
Mr. Frank. I offer an amendment. It's the one that's
headed, ``Offered by Mr. Frank and Ms. Baldwin.''
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to the amendment to H.R. 7, offered by
Mr. Frank and Ms. Baldwin. Page 15----
Mr. Frank. I ask unanimous consent that it be considered as
read.
Chairman Sensenbrenner. Without objection.
[The amendment follows:]
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Frank. This goes to a section we have not previously
debated. We've dealt with employment discrimination. This deals
with beneficiary discrimination.
Now, on page 15, we have non-discrimination against
beneficiaries. Interesting, the very fact that we are dealing
with this shows the controversial nature of some aspects of
this program. Ordinarily, when the Federal Government is
funding programs, we don't worry about discrimination against
beneficiaries. But apparently there is the perception from
people who know this best that some of the organizations
receiving this money might be inclined to discriminate against
beneficiaries. Obviously, that is impermissible with Federal
funds.
But the problem is that it seems to me to be very
incomplete. There is a provision on page 13--I think it's
inappropriately placed, but I hope it's suppose to mean that.
Under section (e), employment practices, there's subsection (1)
and then subsection (2), and subsection (2) says, ``Nothing in
this section alters the duty of a religious organization to
comply with certain laws.''
Now, it's placed in the bill as if it only applied to
employment. I am assuming we would clarify that it was meant to
imply to beneficiaries as well as employment. If not, we'll
have some problems. But even assuming that for the moment,
here's what it says: You shall not, if you are a religious
organization, discriminate based on title VI of the Civil
Rights Act, race, color, or national origin, sex in education
but not elsewhere under title IX, and then section 504 of the
Rehab Act and the Age Discrimination Act.
It then says you shouldn't discriminate based on religion.
Well, one of the things it clearly leaves out, I believe
intended, was any State law that added to these protections.
And, obviously, what we are talking about primarily here are
State laws that ban discrimination against people based on
their sexual orientation.
In other words, this bill licenses the recipients of these
funds to discriminate against beneficiaries based on their
sexual orientation, because by terms it says no discrimination
based on race, on color, on national origin, on disability.
By the way, it also would allow some discrimination based
on sex, because title IX deals with discrimination in
educational programs or activities on the basis of sex, but
other discrimination on the basis of sex would apparently be
allowed.
My amendment--and it's cosponsored by the gentlewoman from
Wisconsin, who had to leave--says you shall not, if you take
these funds, discriminate based on any basis prohibited under
Federal, State, or local law. In other words, I do not think
the Federal Government ought to take this as a license--I do
not think the Federal Government ought to license private
organizations to violate State anti-discrimination law, but the
bill does that. The bill says if you take Federal funds for
this program--previously the gentlewoman from Wisconsin had
said if you have both a mix of Federal and private funds, you
could avoid State anti-discrimination laws in employment. Well,
now that also happens with regard to the beneficiaries. And
obviously it is intended to allow some organizations to say no
to gay, lesbian, bisexual, or transgendered people who might
otherwise be protected by State law and deny them these
benefits.
Now, again, we have the mythical separate but equal
alternative. Yes, if you're denied these benefits,
theoretically there will be another existing set. But it is
abhorrent to be told that you can't even have your choice of
these.
We're not talking now about someone who says, oh, I don't
want this religious instruction--or I don't want this religious
organization giving me the service. We're talking about someone
who wants the service, who is protected against discrimination
by State law, but who by virtue of this bill can be turned away
from a federally funded program when the State law would
protect him or her against discrimination because this law
allows a discrimination against not the employment--the
employees, but the beneficiaries.
I think that is significantly unworthy of something that
comes in the guise of trying to alleviate our social distress,
and I point it also would allow sex discrimination in non-
educational activities. I do not understand how people can
consider this to be a great social advance.
Chairman Sensenbrenner. The gentleman's time has expired.
For what purpose does the gentleman from Ohio, Mr. Chabot,
seek recognition?
Mr. Chabot. Move to strike the last word, Mr. Chairman.
Chairman Sensenbrenner. The gentleman's recognized for 5
minutes.
Mr. Chabot. Thank you, Mr. Chairman. I'll be very brief.
I oppose the amendment, rise to oppose it. There is no
reason to believe that either gays or lesbians would be or
should be discriminated by any of the programs here. There's
absolutely no intention in that or any reason to believe that
that's the case, and for that reason we oppose it.
Mr. Frank. Would the gentleman yield?
Mr. Chabot. I'd be happy to yield.
Mr. Frank. Well, but I would assume you would also think
there was no reason to believe that people would discriminate
based on race or conditions of disability, yet you put into the
bill that they can't. So if we're going to go on the good-faith
assumption that it wouldn't happen, it wouldn't be in the bill.
In fact, you put several categories in the bill and leave out
State laws, which are the only protections that now exist for
gays and lesbians.
Mr. Chabot. Well, reclaiming my time, Congress has the
opportunity--has had the opportunity to act in this area, thus
far at the Federal level has chosen not to do so. There's no
reason for this bill to be the vehicle for that occurring. It's
a debate that it's a legitimate----
Mr. Frank. Would the gentleman yield? Because the gentleman
misstates me.
Mr. Chabot. I'm not yielding yet. So there's no--there's no
reason in this specific bill to have this be the bill that
deals with that particular----
Mr. Frank. Would the gentleman yield?
Mr. Chabot. I'll yield.
Mr. Frank. And neither does the amendment that we offer do
that. The amendment does not name any categories. What the
amendment says is we will respect State law. This is not an
effort to include in Federal law any new protection.
I would also point out that the bill includes a protection
that's not in Federal law, religious discrimination. So you
don't confine yourself in this bill to banning only that
discrimination currently banned under Federal law. You add, as
you should, religious discrimination. So the question is: Why
do we pre-empt State law here in this one area, or whatever
area the States want to add?
Mr. Chabot. Well, reclaiming my time, this is Federal
dollars which the Federal Government has the right to
essentially set the rules on. And thus far Congress has chosen
not to act with respect to discrimination relative to gays or
lesbians. There's no reason for us to----
Mr. Frank. Would the gentleman yield?
Mr. Chabot. This particular--I'll be happy----
Mr. Frank. Thank you. But neither has Congress done this
with regard to religion. You added religion here. This is not
simply saying only those which the Federal Government had done.
And there might be State laws--State laws may offer more
protection on the basis of sex discrimination, not sexual
orientation but sex, than Federal law. You allow that to be
overridden. You only protect sex discrimination in regard to
education, and there is no general ban here on sex
discrimination. Some States which have equal rights amendments,
they would find these disregarded.
I understand that Congress has the power to do that. I
simply don't understand why in the context of a bill that's
supposed to be enhancing our sense of compassion we license
people to discriminate against some categories that their
States have tried to protect against discrimination.
Mr. Chabot. Reclaiming my time, under existing law, other
than based upon religion, you clearly cannot discriminate for
race, color, national origin, or any other item, and this is
just the determination that there's no reason to bring in
sexual orientation under this particular bill. It's a
legitimate debate for Congress to have at some point in time.
This is not the bill to do that----
Mr. Frank. If the gentleman would yield, that----
Mr. Chabot. Essentially what we're trying to do here is
we're trying to allow religious groups who can provide good
services for people who really need the help, whether it's
women who are being abused, whether it's children, whether
it's--a whole range of very needy people. We want to allow
religious groups to compete for those existing dollars because
we realize that some of those groups can do a better job than
others----
Mr. Frank. Would the gentleman yield?
Mr. Chabot.--and we want to provide the best service, the
most efficient service to those needy people as we possibly
can. And there are, as I mentioned, race and color and national
origin. Those are all protected, as we already had the
religious discussion and the discrimination relative to
religion, all the way back to the 1964 civil rights law. It was
determined not to include religion. It's just--it's the belief
that this is not the law to deal with gays or lesbians, the
sexual orientation issue. I'll be happy to yield.
Mr. Frank. If the gentleman would yield, I am appalled by
that. What you're saying is because we haven't done it before,
this is a new program, it's expanding it. And, yes, if you're
abused and, yes, if you're in trouble, you'll get help, but if
a group getting Federal funds decides that because you're a
lesbian, the fact that you've been abused as a wife, they can
deny you, you say that's okay. That's appalling.
Mr. Chabot. Well, reclaiming my time, again, it's been
stated this is an expansion of existing programs. In essence,
much of this is not new programs. We're already doing this. We
were doing this under the welfare reform bill back in 1996,
which was signed by President Clinton. To my knowledge, there's
nothing in there relative to discrimination of gays and
lesbians, and, again, this is not the bill to do that. And I
yield back the balance of my time.
Chairman Sensenbrenner. The question is on the Frank
amendment to the Chairman's amendment. Those in favor will say
aye. Those opposed, no? The noes appear to have it.
Mr. Frank. rollcall.
Chairman Sensenbrenner. A rollcall will be ordered. All
those in favor of the Frank amendment to the Sensenbrenner
amendment will, as your names are called, answer aye; those
opposed, no; and the clerk will call the roll.
The Clerk. Mr. Hyde?
Mr. Hyde. No.
The Clerk. Mr. Hyde, no. Mr. Gekas?
Mr. Gekas. No.
The Clerk. Mr. Gekas, no. Mr. Coble?
[No response.]
The Clerk. Mr. Smith?
[No response.]
The Clerk. Mr. Gallegly?
Mr. Gallegly. No.
The Clerk. Mr. Gallegly, no. Mr. Goodlatte?
Mr. Goodlatte. No.
The Clerk. Mr. Goodlatte, no. Mr. Chabot?
Mr. Chabot. No.
The Clerk. Mr. Chabot, no. Mr. Barr?
Mr. Barr. No.
The Clerk. Mr. Barr, no. Mr. Jenkins?
[No response.]
The Clerk. Mr. Hutchinson?
[No response.]
The Clerk. Mr. Cannon?
Mr. Cannon. No.
The Clerk. Mr. Cannon, no. Mr. Graham?
[No response.]
The Clerk. Mr. Bachus?
[No response.]
The Clerk. Mr. Scarborough?
[No response.]
The Clerk. Mr. Hostettler?
Mr. Hostettler. No.
The Clerk. Mr. Hostettler, no. Mr. Green?
Mr. Green. No.
The Clerk. Mr. Green, no. Mr. Keller?
Mr. Keller. No.
The Clerk. Mr. Keller, no. Mr. Issa?
[No response.]
The Clerk. Ms. Hart?
Ms. Hart. No.
The Clerk. Ms. Hart, no. Mr. Flake?
[No response.]
The Clerk. Mr. Conyers?
[No response.]
The Clerk. Mr. Frank?
Mr. Frank. Aye.
The Clerk. Mr. Frank, aye. Mr. Berman?
[No response.]
The Clerk. Mr. Boucher?
[No response.]
The Clerk. Mr. Nadler?
[No response.]
The Clerk. Mr. Scott?
Mr. Scott. Aye.
The Clerk. Mr. Scott, aye. Mr. Watt?
Mr. Watt. Aye.
The Clerk. Mr. Watt, aye. Ms. Lofgren?
Ms. Lofgren. Aye.
The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
Ms. Jackson Lee. Aye.
The Clerk. Ms. Jackson Lee, aye. Ms. Waters?
Ms. Waters. Aye.
The Clerk. Ms. Waters, aye. Mr. Meehan?
[No response.]
The Clerk. Mr. Delahunt?
[No response.]
The Clerk. Mr. Wexler?
[No response.]
The Clerk. Ms. Baldwin?
[No response.]
The Clerk. Mr. Weiner?
[No response.]
The Clerk. Mr. Schiff?
Mr. Schiff. Aye.
The Clerk. Mr. Schiff, aye. Mr. Chairman?
Chairman Sensenbrenner. No.
The Clerk. Mr. Chairman, no.
Chairman Sensenbrenner. Are there additional Members who
wish to cast or to change their vote? The gentleman from North
Carolina?
Mr. Coble. No.
The Clerk. Mr. Coble, no.
Chairman Sensenbrenner. The gentleman from South Carolina?
Mr. Graham. No.
The Clerk. Mr.----
Chairman Sensenbrenner. Graham.
The Clerk. Mr. Graham, no.
Chairman Sensenbrenner. Further Members? The gentleman from
Tennessee?
Mr. Jenkins. No.
The Clerk. Mr. Jenkins, no.
Chairman Sensenbrenner. Further Members?
[No response.]
Chairman Sensenbrenner. The clerk will report.
The Clerk. Mr. Chairman, there are 7 ayes and 15 nays.
Chairman Sensenbrenner. And the amendment is not agreed to.
Are there----
Mr. Frank. Mr. Chairman?
Chairman Sensenbrenner.--further amendments? The gentleman
from Massachusetts, Mr. Frank.
Mr. Frank. Mr. Chairman, I have a second amendment here. It
says, ``Offered by Mr. Frank and Mr. Scott.''
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to the amendment to----
Mr. Frank. I ask unanimous consent it be considered as
read.
Chairman Sensenbrenner. Well, if the amendment can be
distributed, at least someone will be able to see if a point of
order lies. The clerk will continue to report.
The Clerk. Amendment to the amendment to H.R. 7, offered by
Mr. Frank and Mr. Scott. Page 3, line 24--page 13, line 24,
Strike ``(2) Effect on other laws''----
Chairman Sensenbrenner. Without objection, the amendment
will be considered as read.
[The amendment follows:]
Chairman Sensenbrenner. The gentleman from Massachusetts
will be recognized for 5 minutes.
Mr. Frank. Mr. Chairman, unlike my previous amendment,
which tried substantively to expand the protection, this one is
aimed at clarifying what seemed to me possible ambiguities in
the protections already included in there with 2.
On page 9 of the Chairman's mark, beginning at 20, line 20,
it says, ``Funds not aid to religion,'' and it says that the
money that would, in effect, be given to the organizations, the
faith-based organizations, for the purpose of this assistance
shouldn't be construed as support for religion or the
organization's religious belief.
As a statement of fact and constitutional principle, that
is unexceptional. I just wanted to make sure that this was not
interpreted as somehow avoiding the effect of the non-
discrimination statutes that are in there, that is, the non-
discrimination statutes applied to the entities, and one
potential interpretation was that if you hold that the money
being given is not being given to the organizations, that
somehow that might mean that they were not as organizations
subject to the anti-discrimination statutes. If I am assured
that that was not the intention, maybe we could even work that
out technically. But that's the purpose.
In other words, I wanted to make sure that the anti-
discrimination statutes that are listed beginning on page 13,
subsection (2), that those, in fact, do apply to the
organizations even if it's interpreted as not being aid to
them.
Secondly, there is just a question of the way the bill is
constructed, and I hope it's not intended this way, but that's
the other thing I would add. On page 13 it says, ``(e)
Employment Practices.'' The provision that I assume bans
discrimination against beneficiaries is listed here as
subsection (2) of (e) under Employment Practices. It seemed to
me that it ought to be made a separate section, that is, I just
wanted to make clear that if you read this, someone might
think--would think that employment practices in general effect
on other laws, that there is then nothing that covers
beneficiaries.
If this is read literally to apply, subsection (2)(b) line
24 only to be employment practices, then there's no language
about beneficiaries. It then goes on to talk about rights of
beneficiaries about their rights to withdraw.
So what I was trying to do was to get clarification that
subsection (2) on lines 24 and thereafter applies to
beneficiaries as well as to employees, and also that when we
say that this aid is not aid to the religious organization but
aid to the individuals, that that does not work also to exempt
them from the effects of the statute.
I would yield----
Chairman Sensenbrenner. Would the gentleman yield? Is it
the effect of the gentleman's amendment, which to me seems to
consist solely of inserting the word ``receiving assistance''
or ``providing services'' under any program described under
subsection (c)(4), and the rest is identical to what is----
Mr. Frank. Except can I make one other point, Mr. Chairman?
The other thing it does is simply re-letter so that it takes
that section out from under being a subsection of employment
practices. You're right. It adds providing services, and then
it re--it re-designates so that the anti-discrimination section
is a separate--is not subsumed under (e), which is employment
practices.
I don't strike anything. All I do is to re-letter it. The
way this is worded, on page 13, it says, ``(e) Employment
Practices,'' and then subsection (2) is ``Effect on Other
Laws.'' I just take that out from under employment practices
and make that (f). It doesn't change it. It says--you have (e)
and then you have--subsection (2) becomes (f), because I assume
that is not intended to apply only to employment practices, but
to employment practices and beneficiaries.
The question is: Is subsection (2), beginning on page 24,
intended to apply only to employment practices? If it does,
then nothing provides anti-discrimination protection for
beneficiaries.
The Chairman is right. Other than the indirect, that
section is identical. But, again, it's a question of how it's
placed in the bill.
Chairman Sensenbrenner. If the gentleman would yield?
Mr. Frank. Yes.
Chairman Sensenbrenner. We're prepared to accept the
amendment.
Mr. Frank. I thank the Chairman.
Chairman Sensenbrenner. The question is on the amendment
offered by the gentleman from Massachusetts, Mr. Frank. Those
in favor will signify by saying aye. Opposed, no? The ayes
appear to have it. The ayes have it and the amendment is agreed
to.
Are there further amendments? The gentleman from--the
gentlewoman from Texas, Ms. Jackson Lee?
Ms. Jackson Lee. Mr. Chairman, I have an amendment at the
desk.
Chairman Sensenbrenner. The clerk will report the
amendment. Which amendment does the gentlewoman prefer to have
reported?
Ms. Jackson Lee. The Jackson Lee-Waters amendment.
Chairman Sensenbrenner. Is the clerk clear which amendment
is the one that is being called up?
The Clerk. Amendment to the amendment to H.R. 7, offered by
Ms. Jackson Lee and Ms. Waters. Page 12, beginning on line 21,
strike ``Federal, State and local governments'' and insert
``Federal government.''
Page 13, beginning on line 1, strike ``Neither'' and all
that follows through the word ``shall'' on line 3----
Chairman Sensenbrenner. Without objection, the amendment is
considered as read.
[The amendment follows:]
Chairman Sensenbrenner. The gentlewoman from Texas is
recognized for 5 minutes.
Ms. Jackson Lee. I thank the gentleman very much. I thank
the Chairman.
Our understanding of H.R. 7 is that it pre-empts State and
local contracting requirements related to religious
organizations. Supporters of charitable choice argue that it
would override State and local non-discrimination employment
laws if those laws are contrary to sincerely held religious
beliefs and have also argued it would override State and local
contracting requirements with respect to contracting with
diverse providers.
Now, we have indicated two things in this session today:
one, that we are not doing anything extraordinary--some of us
disagree with that--but that we are leaving intact basic laws
of protection, whether they be civil rights, the First
Amendment, and also laws of non-discrimination.
This is a simple amendment because it extends the
protection of Federal, State, and local laws protecting
individuals against discrimination on bases other than religion
to this legislation. And, therefore, what it does is that it
prohibits eliminating the protections that State and local
governments provide. And that--I would say that it adds and
enhances to this legislation by allowing the State laws and the
local laws to stand. It doesn't change any laws. It simply
allows those certification requirements of local governments
that may require non-discrimination to be applied and not have
the Federal law pre-empt such laws.
I'd ask my colleagues to consider this in the light of the
fact that all of the entities that I have had represent their
concern to me or interest in this legislation clearly indicate
that they do not want to discriminate, and they want to be able
to adhere to the laws and, as well, practice their faith. For
those who would be impacted, who might be discriminated
against, this would add an extra measure of protection if State
and local laws have non-discrimination laws within them. This
would provide the protection for it.
With that, I yield back.
Mr. Chabot. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Ohio, Mr.
Chabot.
Mr. Chabot. Move to strike the last word.
Chairman Sensenbrenner. The gentleman's recognized for 5
minutes.
Mr. Chabot. Thank you, Mr. Chairman.
What we have in the bill right now in every single--is in
every single previously passed charitable choice bill. The
whole idea here is to allow new players into the game. A faith-
based organization needs to be able to preserve its autonomy
against infringements by any level of government, and these are
Federal funds. We want a uniform rule throughout all 50 States
for the use of Federal funds. There are State provisions that
try to limit freedoms the U.S. Supreme Court has held are part
of our religion clauses when it comes to Federal money.
If States or localities have different notions of church-
state issues, all they have to do is keep their funds separate
and their own provisions will apply to their own separated
funds.
We don't want to overrule how States use their own State
funds. We want to apply the same equal access rules when
Federal funds are used. And, therefore, we respectfully oppose
the amendment.
I yield back the balance of my time.
Chairman Sensenbrenner. Would the gentleman yield?
Mr. Chabot. I'd be happy to yield.
Chairman Sensenbrenner. My reading of the section on page
18 that this amendment seeks to delete is that it leaves it up
to the State or locality to make a determination on whether
they want their laws to apply. If there are exclusively Federal
funds going into the faith-based organization, then this is not
a relevant issue. If the faith-based organization accepts
Federal funds as well as either State or local funds, then the
State or local government, if they wish their laws to apply,
can require that their funds be segregated from the Federal
funds.
So what the amendment of the gentlewoman from Texas
attempts to do is to take away the choice of State or local
governments to make that determination for themselves in their
extension of the funds to the faith-based organization. I think
that State and local governments should have that right and as
a result would oppose the amendment and urge that the Committee
vote it down.
Mr. Frank. Mr. Chairman?
Chairman Sensenbrenner. The time belongs to the gentleman
from Ohio.
Mr. Chabot. I yield back.
Mr. Frank. Mr. Chairman?
Chairman Sensenbrenner. For what purpose does the
gentlewoman from California, Ms. Waters, seek recognition?
Ms. Waters. I would like to strike the last word.
Chairman Sensenbrenner. The gentlewoman is recognized for 5
minutes.
Ms. Waters. Mr. Chairman and Members, I am going to speak
out in opposition to section 201(d) of H.R. 7, the
organizational character and autonomy provision, and section
201(j), the effect on State and local funds. As a result of
these sections, charitable choice would pre-empt State and
local laws' contracting requirements.
Under section 201(d)(1), religious organizations are given
the right to retain autonomy from Federal, State, and local
governments. This provision extends to the organization's
control over the definition, development practice, and
expression of its religious beliefs. section 201(d)(2)(A) would
enable religious organizations to avoid Federal, State, or
local requirements that the organization alter its internal
governance and character documents. section 201(j) applies
charitable choice provisions to any State or local funds that
are commingled with Federal funds.
These provisions create discrimination issues. For example,
State and local contracting requirements apparently would not
apply beyond the extent to which they exist under charitable
choice. Even supporters of charitable choice acknowledge as
much. Carl Esbeck, one of the drafters of charitable choice,
stated the following in an article on charitable choice:
``States and municipalities often have non-discrimination laws
and procurement policies enacted pursuant to governmental
spending power. When these spending power laws do not permit
faith-based organizations to select staff on the basis of faith
commitments, the laws are not enforceable against FBOs acting
pursuant to charitable choice contracts or grants.''
Supporters also tell us that charitable choice would
override State and local non-discrimination employment laws if
those laws are contrary to sincerely held religious beliefs. We
don't even know what that encompasses. The phrase is not
defined in the bill and would arguably be extended to cover
almost anything a person believes. We know that the courts are
already reluctant to delve into the politically sticky area of
deciding the merits of a religious tenet. Even worse, this
provision goes further than to allow sincerely held religious
beliefs. It applies to any arbitrary practice, decision, or
rule that the religious organization uses. In other words, if a
religious group believes that all their employees must be bald-
headed men over the age of 70, this provision would make it
acceptable.
We're also told, again, by supporters of charitable choice
that it would override State and local contracting requirements
for culturally diverse providers. Specifically, supporters have
stated that a State or locality would not be able to require
that the governing board of a faith-based provider reflect the
ethnic, gender, or cultural diversity of the community or
beneficiaries. Their response is that such matters of internal
governance are under the control of the faith-based
organization. Under section 201(j), any State or local funds
that are commingled with Federal funds would be exempt from
State or local laws and requirements. This is clear
overreaching.
The first question we need to ask is: Why is Congress
interfering with States' rights on this issue? Furthermore, how
can we justify as constitutional a bill that allows religious
organizations to blatantly ignore valid employment and
contracting non-discrimination laws. These provisions, like
many other provisions in H.R. 7, are unbalanced and unfair. Our
amendment would revise them so as to prevent blatant
discrimination.
I urge you to amend these problematic parts of H.R. 7 and
take a step towards a bill we can truly support. It is very
seldom that I witness this kind of pre-emption at the Federal
Government level. To override States and their local laws is
far, far reaching, and I would hope that in the interest of
honoring what so many people on the opposite side of the aisle
preach about, States' rights, that we would support this
amendment.
I yield back the balance of my time.
Mr. Frank. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Massachusetts,
Mr. Frank?
Mr. Frank. Mr. Chairman, I am disturbed by a couple of
things about this bill. One is the institution of--
institutionalization of the principle that it's perfectly
reasonable for religious organizations not to want to hire
people of other religions for non-religious purposes, as if it
was somehow an imposition on them to do so.
Secondly, though, we have this principle now that says you
can take Federal funds and use the fact that you have received
Federal funds to exempt you from the existence of State laws,
State anti-discrimination laws and some other laws.
This notion that the Federal Government can immunize you
from following State laws that otherwise fairly apply to
everybody is really very troubling, it's very radical, and
wholly unnecessary.
Now, Members will tell us that it was in the welfare bill.
I would say a couple of things about that. First of all, I
voted against the welfare bill, so I do not feel concluded by
it.
Secondly, I think it is fair to say that much of what was
being done in the welfare bill, the focus was on the welfare
part. I don't believe this got a lot of attention.
Finally, we are not the Supreme Court of the United States.
The notion that having once legislated a certain way we are,
therefore, precluded from unlegislating or doing it differently
is, of course, a proposition to which no one holds any
adherence. It's something that may be thrown in, but it's not
an argument. It's an absence--it's a substitute for an
argument.
The question is: Is it good or bad public policy? And I
do--and I appreciate the gentleman from Ohio making it very
explicit that this is not a bill where we are going to deal
with the rights of gay men and lesbians. The point, though, is
that many States have. This is not in my judgment--I'm not
asking--my colleagues weren't asking that we make this a
vehicle to give gay and lesbian Americans more protections than
they already have. I agree that should be in another bill.
What this bill does, though, is to say to some
organizations that are now governed by State laws protecting
gays and lesbians that, by the receipt of Federal funds, some
entities can get an exemption from that. What this bill does is
to reduce the protection that gay and lesbian citizens have.
And that, it would seem to me, ought to be as inappropriate as
using this as a vehicle for expansion.
The way you have this bill, you are using it as a license
to cut back on rights that many States have seen fit to grant
to gays and lesbians, perhaps to other categories, because
right now if a religious organization or any other wants to
give a purely secular service--they're not covered by the
religious exemption--then they would be covered by this in some
States, maybe not in others. New Jersey even has a public
accommodations statute that's very broad.
So what this bill says is by taking Federal funds, a
private entity previously subject to a legislated requirement
not to discriminate based on sexual orientation can now do so.
That seems to me terribly unfair to gay, lesbian, and bisexual
Americans who will have less protection as a result of this law
than before. And it's a terrible precedent and a terrible
statement.
What you're saying, again, is take Federal funds an dy can
be exempted from some of these State laws. You know, I think
back--I see my friend from California, and I think of her
extraordinary distinguished predecessor, Gus Hawkins, whom so
many of us revered. I remember when we did the Civil Rights
Restoration Act back in the days when we thought the Federal
Government should be expanding people's rights, not being an
excuse to cut them back. And when people complained about the
Civil Rights Restoration Act, which made it clear that if you
took Federal funds you couldn't discriminate after the Supreme
Court had somewhat shortchanged that statutory interpretation,
he said, you know, if you dip your fingers in the Federal till,
don't complain if a little democracy rubs off on them.
Well, you're absolutely reversing this. And so both
specifically by reducing the protections that now exist for gay
men and lesbians and in general by setting the precedent or
reaffirming it and broadening it from the welfare bill that
accepting Federal funds is a license not to follow existing
State law, I think this bill does terrible damage.
Mr. Watt. Mr. Chairman?
Chairman Sensenbrenner. For what purpose does the gentleman
from North Carolina seek recognition?
Mr. Watt. I move to strike the last word.
Chairman Sensenbrenner. The gentleman's recognize for 5
minutes.
Mr. Watt. Thank you, Mr. Chairman.
I, in addition to the States' rights arguments that have
been asserted, really have serious reservations about what we
are doing--what we are saying to State and local governments,
particularly on page 13 at lines 9 through 12, because the
effect of what we are saying is that if a State or local
government makes an effort or is making an effort to comply
with the decisions of the United States Supreme Court about
what is constitutionally permissible and what is not
constitutionally permissible, we are in this bill prohibiting
them from doing that. And that just seems extremely
counterproductive to me.
I mean, here we are a Nation of laws. We may, as I quite
often do, disagree with the decisions of the United States
Supreme Court, but they are the final arbiters of the
Constitution in our structure. And for us to be saying to State
and local governments, even though you are trying to comply
with the constitutional mandates as they have been set out by
the United States Supreme Court, we are directing you in this
law that we are passing not to require a religious organization
to remove religious icons or what have you.
And I think those are some of the cases where the Supreme
Court has really said that in some cases that could be
necessary to comply with the United States Constitution.
How do we look as a--I mean, I suppose we could go at it
directly and try to amend the Constitution. We have. But this
is an indirect way of saying to the States we can't--we can't--
we don't have the votes to amend the Constitution. We've done
as aggressive a job as we can do on changing the composition of
the United States Supreme Court, and we've failed to revise the
interpretation of the Constitution that they have come down
with, even having had control of the Court for whatever period
of time. Now we are going to direct you in a Federal statute
not to comply with what the Supreme Court has said the law is.
This is unprecedented.
And I just--it's unprecedented for us to be usurping State
and local laws, first of all, those of us who give so much lip
service to States' rights consistently, but then to go beyond
that and say, All right, States, we are directing you not to
follow the Supreme Court's decisions when we all know that that
in our process is the final word on legal and constitutional
issues is just--is just outrageous. I think we should support
this amendment, and I yield back--I'm sorry. I was going to
yield the balance of my time. I got carried away. I was going
to yield to Ms. Jackson Lee.
Thank you.
Ms. Jackson Lee. I may have to ask--thank you very much,
Mr. Watt.
Mr. Chairman, let me answer the concern that you raised
about the fact that this has not been done before, and to say,
with Mr. Watt's commentary, this is a restatement of existing
law. But in the evolution of charitable choice provisions, for
example, the Community Renewal Tax Relief Act of 2000, which
amended certain provisions and grant programs administered by
the Substance Abuse and Mental Health Service----
Chairman Sensenbrenner. The gentleman's time has expired.
Ms. Jackson Lee. Can I have someone strike the last word so
I can get some time to finish my point, please?
Chairman Sensenbrenner. The gentlewoman has already been
recognized in support of her amendment.
Ms. Jackson Lee. Mr. Nadler, would you yield to me when you
get through, please? Thank you.
Chairman Sensenbrenner. The gentleman from New York, Mr.
Nadler.
Mr. Nadler. I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Nadler. Thank you, Mr. Chairman.
I wish to commend the gentleladies, Ms. Jackson Lee and Ms.
Waters, for their excellent amendment, and I yield to the
gentlelady from Texas.
Ms. Jackson Lee. I thank the distinguished gentleman very
much.
I wanted to make a point that this has occurred in previous
legislation, the Community Renewal Tax Relief Act of 2000, had
language in the legislation, which we supported, many of us,
that nothing in this section shall be construed to modify or
affect the provisions of any other Federal or State law or
regulation that relates to discrimination in employment.
I think we can come together on this simply by
acknowledging that all we want to do is leave existing law in
place and not undermine any existing rights or enhance any
existing rights. We are not trying to write legislation that
would cause us to give rights, we're just trying not to take
rights away.
And I don't think any religious entity, willing to be the
Good Samaritan, as I have indicated, would be opposed, Mr.
Chairman, to just having the present laws that they are
governed by, in their particular jurisdiction, remain in place.
They've lived under those laws, and I think they would rightly
be willing to do so.
This amendment that myself and Ms. Waters are offering
clearly just asks that we not exempt from the obligation to
adhere to, not exempt these entities participating under this
legislation from existing nondiscriminatory State and local
laws. And I would ask my colleagues to support this amendment,
as it restates and is supported by previous legislation by the
Act of 2000, the Community Renewal Tax Relief Act of 2000.
With that, I yield.
Chairman Sensenbrenner. The question is on the amendment
offered by the gentleman from Texas, Ms. Jackson Lee, to the
Chairman's amendment.
Those in favor, all say aye.
Opposed, no.
The noes appear to have it.
Ms. Jackson Lee. rollcall.
Chairman Sensenbrenner. A rollcall is ordered.
Those in favor of the Jackson Lee amendment to the
Sensenbrenner amendment will, as your names are called, answer
aye; those opposed, no, and the clerk will call the roll.
The Clerk. Mr. Hyde?
Mr. Hyde. No.
The Clerk. Mr. Hyde, no. Mr. Gekas?
Mr. Gekas. No.
The Clerk. Mr. Gekas, no. Mr. Coble?
[No response.]
The Clerk. Mr. Smith?
[No response.]
The Clerk. Mr. Gallegly?
Mr. Gallegly. No.
The Clerk. Mr. Gallegly, no. Mr. Goodlatte?
Mr. Goodlatte. No.
The Clerk. Mr. Goodlatte, no. Mr. Chabot?
Mr. Chabot. No.
The Clerk. Mr. Chabot, no. Mr. Barr?
[No response.]
The Clerk. Mr. Jenkins?
[No response.]
The Clerk. Mr. Hutchinson?
Mr. Hutchinson. No.
The Clerk. Mr. Hutchinson, no. Mr. Cannon?
Mr. Cannon. No.
The Clerk. Mr. Cannon, no. Mr. Graham?
Mr. Graham. No.
The Clerk. Mr. Graham, no. Mr. Bachus?
Mr. Bachus. No.
The Clerk. Mr. Bachus, no. Mr. Scarborough?
[No response.]
The Clerk. Mr. Hostettler?
Mr. Hostettler. No.
The Clerk. Mr. Hostettler, no. Mr. Green?
Mr. Green. No.
The Clerk. Mr. Green, no. Mr. Keller?
Mr. Keller. No.
The Clerk. Mr. Keller, no. Mr. Issa?
Mr. Issa. No.
The Clerk. Mr. Issa, no. Ms. Hart?
Ms. Hart. No.
The Clerk. Ms. Hart, no. Mr. Flake?
Mr. Flake. No.
The Clerk. Mr. Flake, no. Mr. Conyers?
[No response.]
The Clerk. Mr. Frank?
Mr. Frank. Aye.
The Clerk. Mr. Frank, aye. Mr. Berman?
[No response.]
The Clerk. Mr. Boucher?
[No response.]
The Clerk. Mr. Nadler?
Mr. Nadler. Aye.
The Clerk. Mr. Nadler, aye. Mr. Scott?
Mr. Scott. Aye.
The Clerk. Mr. Scott, aye. Mr. Watt?
Mr. Watt. Aye.
The Clerk. Mr. Watt, aye. Ms. Lofgren?
Ms. Lofgren. Aye.
The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
Ms. Jackson Lee. Aye.
The Clerk. Ms. Jackson Lee, aye. Ms. Waters?
Ms. Waters. Aye.
The Clerk. Ms. Waters, aye. Mr. Meehan?
[No response.]
The Clerk. Mr. Delahunt?
[No response.]
The Clerk. Mr. Wexler?
[No response.]
The Clerk. Ms. Baldwin?
[No response.]
The Clerk. Mr. Weiner?
[No response.]
The Clerk. Mr. Schiff?
[No response.]
The Clerk. Mr. Chairman?
Chairman Sensenbrenner. No.
The Clerk. Mr. Chairman, no.
Chairman Sensenbrenner. Are there additional Members who
wish or desire to cast or change their vote?
The gentleman from North Carolina?
Mr. Coble. No.
The Clerk. Mr. Coble, no.
Chairman Sensenbrenner. The gentleman from Georgia?
Mr. Barr. No.
The Clerk. Mr. Barr, no.
Chairman Sensenbrenner. The gentleman from Tennessee?
Mr. Jenkins. No.
The Clerk. Mr. Jenkins, no.
Chairman Sensenbrenner. If there are no further Members who
desire to cast or change their vote, the clerk will report.
The Clerk. Mr. Chairman, there are 9 ayes and 19 nays.
Chairman Sensenbrenner. And the amendment is not agreed to.
Are there further amendments?
The Clerk. Excuse me, Mr. Chairman. I'm sorry. There are 7
ayes and 19 nays.
Chairman Sensenbrenner. As corrected, the rollcall will
stand.
The gentleman from North Carolina, Mr. Watt?
Mr. Watt. Thank you, Mr. Chairman. I have an amendment at
the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to the Sensenbrenner amendment to H.R.
7----
Mr. Watt. I am going to ask unanimous consent the amendment
be considered as read.
Chairman Sensenbrenner. Without objection, so ordered.
[The amendment follows:]
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Watt. Thank you, Mr. Chairman.
I believe, Mr. Chairman, that this is an oversight that I
am trying to correct. If you look at the bill starting on Page
10, the definition of programs includes the Federal housing
statutes, including community development block grants. That's
at the top of Page 11. Yet, when you get over to Page 14, and
you start to itemize the impact on other laws, the Fair Housing
Act is left out, and----
Chairman Sensenbrenner. Would the gentleman yield?
Mr. Watt. Yes, I'm happy to yield.
Chairman Sensenbrenner. The subsection that the gentleman
is attempting to amend deals with employment practices. The
Fair Housing Act, as amended, deals with the sale or rental of
housing. It has nothing to do with employment, and consequently
this was not an oversight because the Fair Housing Act is not
relevant to employment practices.
Mr. Watt. Okay. I think the gentleman is right, and I
withdraw the amendment.
Chairman Sensenbrenner. Are there further amendments?
Mr. Nadler. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from New York, Mr.
Nadler.
Mr. Nadler. Mr. Chairman, I have one more amendment at the
desk. I think it's No. 2.
Chairman Sensenbrenner. The clerk will report one more
Nadler amendment. [Laughter.]
Chairman Sensenbrenner. This is the final Nadler amendment?
Mr. Nadler. I believe so.
Chairman Sensenbrenner. Can we count on it?
Mr. Nadler. Unless I have further inspiration.
Chairman Sensenbrenner. The clerk will report the
amendment, and those in the room will please be uninspiring.
[Laughter.]
The Clerk. Amendment to the amendment to H.R. 7 offered by
Mr. Nadler and Mr. Frank. Page 15, strike line 1 through line 3
and insert:
``(A) Is an alternative''----
Mr. Nadler. Mr. Chairman, I ask unanimous consent that
further reading of the amendment be dispensed with.
Chairman Sensenbrenner. Without objection.
[The amendment follows:]
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Nadler. Thank you, Mr. Chairman.
Mr. Chairman, this bill promises a nonreligious alternative
to any eligible individual who does not wish to participate in
a religious program or a program run by a particular religion.
I think everyone believes that in order to prevent the
religious coercion of the most vulnerable members of our
society, those seeking help from the Government, with the
burdens of poverty, drug addiction, homelessness, and the many
other terrible social ills addressed by programs in this bill
should not be subject to religious proselytization as the cost
of getting the services they need.
I certainly agree with that view. If religious liberty has
any meaning, it is that no one should have the right to use
public money and the power of the State to coerce those living
in the shadows of life into giving up their own religious
autonomy. So profound a principle is this that even supporters
of the bill have agreed that an alternative must always be made
available.
In fact, Professor Douglas Laycock, a respected legal
scholar who was called at the hearings before the Subcommittee
as a witness by the majority went so far as to say in our
hearing that the entire program would be a ``fraud,'' if such
an alternative were not made available.
But a funny thing happened on the way to protecting the
religious autonomy of the poor seeking help. The budget
proposed by the President and passed by this House actually
cuts funding from any of these social programs. These are
programs that are not now fully funded. Those of us who try to
help our constituents obtain these services know that they are
often not available in a reasonable period of time or in an
accessible location or, in some cases, not at all. We all know
that a young person who sincerely wants to kick drug addiction
may be told, ``Sorry. We don't have any room for you right now.
Come back in 6 months.'' By that time, he could be dead or
infected with HIV or no longer able to participate in the
program.
So where is the alternative envisioned in the bill going to
come from? The bill provides no new money. It pays for not one
additional bed or home or bowl of soup or detox. It certainly
does not pay for these alternatives. In fact, if no new money
is available, those alternatives will likely lose their
funding, in some cases, to religious organizations.
The alternative which everyone agrees is absolutely
necessary to make this program work, to make it constitutional
and certainly to make it something other than a way to foist
the religious beliefs of some onto society's most vulnerable
members is simply a hollow promise. This amendment is intended
to give that promise meeting. If you are going to have
charitable choice, you are going to have to provide an
alternative choice. If you cannot or you will not, then there
will be no charitable choice, and everyone has agreed that
there should be no charitable choice without a real choice,
without a secular choice. This amendment will require
proponents of this program to put their money where their
principles are.
I have also restored language from the original legislation
making clear that among the alternatives that must be available
are nonreligious alternatives. It does no good to tell a person
to find a less objectionable religious program when all they
need is a place to keep from freezing to death for the night. I
have, however, obtained language from the Chairman's mark
making clear that the alternative must be religiously not
objectionable to the individual, in addition to being
accessible and of equal value. I guess you could call this the
secular, but equal amendment. I know there are weaknesses with
this approach that have been discussed today, but it's better
than not making real the alternative.
I strongly urge the adoption of this amendment. Without the
adoption of this amendment, the entire project really is State-
sponsored religious coercion. The very reason why the Framers
of our Constitution were concerned that excessive entanglement
between Government and religion would endanger religious
liberty. Here is a clear illustration of why they are correct.
And I must say that this amendment is a time for the
sponsors of the bill to show that they are sincere in their
protestations that they mean for there to be a nonreligious
alternative so that there's no religious coercion because this
amendment says that the charitable choice provisions in a given
program are eliminated if there is no charitable choice made
avail--if there's no secular alternative made available in a
reasonable time. This will force funding of reasonable
alternatives.
Thank you, Mr. Chairman. I yield back.
Chairman Sensenbrenner. The gentleman from Ohio, Mr.
Chabot.
Mr. Chabot. Mr. Chairman, I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Chabot. Thank you, Mr. Chairman. I rise to oppose the
amendment.
The focus should be a case-by-case determination of what
the individual beneficiary wants. The alternatives the bill
currently provides for might be, for example, another faith-
based organization, not objectionable to the beneficiary or an
alternative purchased on the open market or provided by
volunteers or a third one would be an alternative secular
provider.
The bill, without the amendment, allows States and
localities more flexibility in offering alternatives, and it
allows beneficiaries greater choice, and for that reason, we
oppose the amendment.
I yield back the balance of my time.
Chairman Sensenbrenner. The question is on the amendment
offered by the gentleman from New York, Mr. Nadler.
Those in favor will say aye.
Opposed, no.
The noes appear to have it. The noes have it, and the
amendment is not agreed to.
Are there further amendments?
The gentleman from Virginia, Mr. Scott.
Mr. Scott. Mr. Chairman, I have an amendment at the desk,
Scott No. 9.
Chairman Sensenbrenner. The clerk will report amendment No.
9.
The Clerk. Amendment to the amendment to H.R. 7 offered by
Mr. Scott. Page 15, line 1 after ``that is'' insert ``at least
as.''
[The amendment follows:]
Chairman Sensenbrenner. The gentleman from Virginia is
recognized for 5 minutes.
Mr. Scott. Mr. Chairman, this amendment will ensure that
program beneficiaries would have equal access to alternative
programs. Under the current language of the manager's
amendment, program beneficiaries who object to the religious
character of a program must be provided with an alternative
program, but an alternative program needs to be at least as
accessible as the designated program in order to offer a real
alternative. If the alternative is located much farther away,
not on a public transportation line or has other accessibility
issues, then it may be technically accessible, but it is not a
reasonable alternative for the beneficiary.
If we're serious about offering alternative programs to
those who are uncomfortable with the religious character of an
organization, then we must make sure that the alternative
programs are not just technically available, but at least as
accessible as the original program. My amendment adds this
clarifying language, and I ask that you support it.
Chairman Sensenbrenner. The Chair recognizes himself in
opposition to the amendment.
This amendment makes this safety valve unworkable. If
somebody lives across the street from that Baptist Church in
Idaho that we spent most of the afternoon talking about and
doesn't want to go to the Baptist Church for an after-school
program or social services provided under the bill, this
requires that the alternative program be at least as close as
the Baptist Church across the street. Now, that's unreasonable.
I would hope the amendment would be voted down, as a result of
that.
I yield back the balance of my time.
The question is on the adoption of the Scott amendment to
the Sensenbrenner amendment.
Those in favor will signify by saying aye.
Opposed, no.
Noes appear to have it, the noes have it, and the amendment
is not agreed to.
Are there further amendments?
Mr. Scott. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Virginia, Mr.
Scott.
Mr. Scott. Mr. Chairman, I have an amendment at the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
Mr. Scott. No. 12.
Chairman Sensenbrenner. No. 12.
The Clerk. Amendment to the amendment to H.R. 7 offered by
Mr. Scott, Page 9, line 11 after the period add, ``For the
purposes of this section, a religious organization is an
organization which is pervasively sectarian, and states in the
application for funding that it is a pervasively sectarian
organization.''
[The amendment follows:]
Chairman Sensenbrenner. The gentleman from Virginia is
recognized for 5 minutes.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Chairman, we've waived significant laws for religious
organizations. Civil rights may not apply, there's separate
alternatives that are available if the organization making an
application is a religious organization, but I couldn't find a
definition of what religious organization meant.
If an organization is going to be entitled to benefits
under the bill, we should know it before the problem occurs. So
this amendment provides a description of what a religious
organization is that says it's a pervasively sectarian
organization and states that it ought to say so in the
application, otherwise secular programs might try to benefit
from the provisions of the bill by suggesting, when they get in
trouble on discrimination, that they are religious because they
began reading Bible versus around the programs, and they are
now a religious organization and ought to qualify.
We ought to know that up front. This defines religion and
says if you're going to be a religious organization for the
purposes of this bill, then you ought to say so up front.
I'd hope you'd adopt the amendment.
Mr. Hyde. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Illinois, Mr.
Hyde.
Mr. Hyde. I think the word ``pervasive'' is a little bit
pejorative. I'm surprised that the gentleman looked through a
dictionary and could only come up with this. Pervasively
sectarian could be an atheist, pervasively atheist, agnostic,
sectarian. Why not just say sectarian? Why the pervasive? It
just seems to me that's pejorative.
Mr. Scott. Will the gentleman yield?
Mr. Hyde. Sure.
Mr. Scott. I used that term because that's what the Supreme
Court has used when they look at religious organizations. They
generally use the term ``pervasively sectarian.'' So, if you
want to strike it--if you'll adopt the amendment if I strike
it. [Laughter.]
Mr. Chabot. Would the gentleman from Illinois yield?
Mr. Hyde. Yes.
Mr. Chabot. I thank the gentleman for yielding.
I, as well as the Chairman, or former Chairman, oppose this
particular amendment. The pervasively sectarian standard in the
law is dead. As the Congressional Research Service concluded in
its December 27th, 2000, report to Congress on charitable
choice, ``In its most recent decisions, the Court appears to
have abandoned the presumption that some religious institution,
such as sectarian, elementary, and secondary schools, are so
pervasively sectarian that they are constitutionally ineligible
to participate in direct public aid programs.''
``It also seems clear that for a majority, a different
majority of six justices, those joining in the Thomas and
O'Connor opinions, the question of whether a recipient
institution is pervasively sectarian is no longer a
constitutionally determinative factor.''
So, therefore, the pervasively sectarian test is dead.
Another one of its obituaries was written just yesterday by
the Fourth Circuit Court of Appeals, as I had mentioned earlier
in that case this morning, which held that the Constitution
allows the Government to provide direct aid to a religious
organization, ``without resort to a Court's examining its
pervasively sectarian status, as long as there are protections
in place prohibiting Federal funds from being used for a
proselytizing activities.''
The Supreme Court has decisively rejected the idea that
religious people simply can't be trusted to follow rules
against using Federal funds for proselytizing activities. Both
the plurality opinion and the opinion joined by Justices
O'Connor and Breyer in Mitchell v. Helms stand for the
proposition that members of religious organizations should
always be presumed to be acting in good faith.
In Mitchell v. Helms, the controlling opinion of Justices
O'Connor and Breyer states that, ``The Court's willingness to
assume that religious school instructors will inculcate
religion has not caused us to presume also that such
instructors will be unable to follow secular restrictions on
the use of textbooks. It is entirely proper to presume that
these school officials will act in good faith.''
In Mitchell v. Helms, the majority reversed an appeals
court holding that providing educational materials and
equipment to pervasively sectarian schools was
unconstitutional.
So, just to reiterate, the pervasively sectarian standard
in the law is completely dead, and I thank the gentleman for
yielding.
Chairman Sensenbrenner. Does the gentleman from Illinois
yield back?
Mr. Hyde. I yield back.
Chairman Sensenbrenner. The question is on the Scott
amendment to the Sensenbrenner amendment.
Those in favor will say aye.
Opposed, no.
The noes appear to have it. The noes have it. The amendment
is not agreed to.
Are there further amendments?
Mr. Scott. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Virginia, Mr.
Scott?
Mr. Scott. I have an amendment at the desk, No. 14.
Chairman Sensenbrenner. The clerk will report Scott No. 14.
The Clerk. Amendment to the amendment to H.R. 7 offered by
Mr. Scott. Page 19, line 20, after ``COMPLIANCE,'' insert
``Funding under this section shall be based on the objective
merits of the applications submitted and shall not discriminate
against an applicant based on the religious character of the
organization.''
[The amendment follows:]
Chairman Sensenbrenner. The gentleman from Virginia is
recognized for 5 minutes.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Chairman, this amendment provides that decisions to
fund one organization--a decision to fund one organization or
another must be made on objective merits and not religious
discrimination. We have heard all day that all religions will
be treated fairly. This amendment protects minority religions
which I think, frankly, will not be treated fairly. If a
minority religion has the best program, it ought to get the
contract. There should not be discrimination against a religion
because it's not the religion favored by the Government
officials making the decision.
So, Mr. Chairman, as we heard earlier, we're going to treat
all religions fairly, well, let's put it in the bill.
I yield back the balance of my time.
Chairman Sensenbrenner. The gentleman from Ohio, Mr.
Chabot?
Mr. Chabot. Move to strike the last word, Mr. Chairman.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Chabot. Thank you, Mr. Chairman. I oppose the
amendment. This is already provided for in Subsection
(c)(1)(b), no discrimination----
Mr. Scott. Can you say what pages that's on----
Mr. Chabot.--on the basis of religion----
Mr. Scott. Excuse me. What page is that on?
Mr. Chabot.--no discrimination on the basis of religion for
or against faith-based providers. This is already the whole
purpose of the bill. Let's not get judges involved in saying
what is objective or what is not. The term ``applicant''
doesn't fit in the context of indirectly funded programs such
as vouchers, and therefore we oppose the amendment.
Yield back the balance.
Chairman Sensenbrenner. The question is on----
Mr. Watt. Mr. Chairman?
Chairman Sensenbrenner.--the adoption of the Scott
amendment.
Mr. Watt. Mr. Chairman?
Chairman Sensenbrenner. For what purpose does the gentleman
from North Carolina seek recognition?
Mr. Watt. I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Watt. We were just trying to find the provision that
he----
Chairman Sensenbrenner. Would the gentleman yield?
Mr. Watt. Yes.
Chairman Sensenbrenner. It is on Page 9, (1)(b), lines 12
through 19, inclusive.
Mr. Watt. Page 9.
Mr. Scott. Will the gentleman yield?
Mr. Watt. Yes, I will yield to the gentleman.
Mr. Scott. Mr. Chairman, that says that you cannot
discriminate against a religion because it has a religious
character. It does not say that you can't discriminate against
one religion because you don't like that religion. If you have
picked one religious group over another because the Government
officials prefer that religion, notwithstanding the fact that
the other program had a better program by any objective
standard, you ought not discriminate against an organization
because you don't like their religion.
Now, this is where I think we may have a disagreement. I
don't believe--I believe that the minority religions aren't
going to get any funds under this because Government officials
will pick their favorite religion because of politics, the one,
the religion that has the most votes, not the program that has
the best merits. And this amendment says that you can't
discriminate against one religion or another, just because it
has religious character and you pick a religious group, if it
is, by any objective standard, a minority religion has a better
program, then it ought to get the contract.
Now, if this amendment isn't passed, then all that
discussion we had about treating religions fairly was a waste
of time because this says that you have to treat religions
fairly. And either you're going to do it or you're not, and if
you want to treat religions fairly, you ought to adopt this
amendment.
Mr. Watt. Reclaiming my time, Mr. Chairman.
We've had a lot of discussion today about religion and not
discriminating against religions and not disadvantaging
religions, but in the final analysis, the delivery of services
of the Government is about the delivery of services, and who
can deliver those services the best. That's why, I take it,
this bill, this whole idea is being advanced because some
people, a number of us agree that religious institutions can
deliver certain social services and Government services that
have been delivered by the Government in the past more
effectively than the Government.
But in the final analysis, this should never be about
discriminating against one religion because it's got less
members or less votes or--this should always be about providing
a provider of service that will do the best job, which is what
we all are about as the Government here.
And while I respect your reference to the language on Page
9, it simply does not do what Mr. Scott's amendment would do,
and I think we have done ourselves, and the public and
taxpayers a major disservice if we are not striving to get the
most efficient and best provider of services out there to
deliver whatever it is we're trying to deliver, whether it's
drug counseling or education or whatever we're delivering
through these organizations.
And I agree with Mr. Scott. I think quite often this
language is going to be used to favor mainstream religions to
the advantage of other religions that might be able to deliver
the services substantially better and more effectively. It's
going to be used in some section of town because that section
of town votes and not in the other section of town because that
other section of town doesn't vote, and that's the very thing
that we should not be countenancing under this legislation, and
I think if we are serious about this, we've got to adopt Mr.
Scott's amendment.
Chairman Sensenbrenner. The question is on the Scott
amendment to the Sensenbrenner----
Ms. Lofgren. Mr. Chairman?
Chairman Sensenbrenner. The gentlewoman from California,
Ms. Lofgren.
Ms. Lofgren. I move to strike the last word.
Chairman Sensenbrenner. The gentlewoman is recognized for 5
minutes.
Ms. Lofgren. I will not consume 5 minutes. I, just in favor
of this amendment, I think it's important that there be a
process put in place in the selection process so that we do not
end up with favoring one religion over another. Frankly, if
that patterns emerges, and it's quite possible it may, that's
clearly violative of the First Amendment, and this whole thing
is going to fall apart.
I think it is important to prevent that--that circumstance
by providing a process to--where the first amendment can be
sustained. And I think, you know, I don't know what is in the
minds of all of the Members of the Committee, but there may be
assumptions across America that it will be the predominant
religion in America that is often selected. Well, I'll tell
you, there are parts of the country, especially in the State
I'm from, where the predominant religion of the citizens and
voters is not the predominant religion of America.
And so unless there is a process for fairness, and I do not
buy the argument that there cannot be objective standards. I
mean, in my decades of service in local government, you have
RFPs, you have standards, that is routine, and it is imposed,
oftentimes, by the Federal Government, as well as State
Government. So you can do objective standards, and if we don't
do it, we're just going to end up with lawsuits all over the
country, and I think the----
Mr. Scott. Would the gentlelady yield?
Ms. Lofgren. I would yield to Mr. Scott.
Mr. Scott. I would also add, since you mentioned local
officials having to evaluate, if you don't have objective
standards by which an applicant got the contract, how does the
agency that let the contract evaluate the program if it's not
on objective criteria? Do we say it's a good religion--
religious experience or what? You have to have some kind of
objective standard to let the contract to begin with and then
to follow up to see if they complied with the contract.
Ms. Lofgren. Reclaiming my time. The lack of standards,
also, will instigate, will be an incentive to litigation
because people are very edgy about their religious beliefs and
take those beliefs very seriously. And if you have a
competition between the Sikhs, the Buddhists and the Janes in
my district, and one of those is selected and the other two are
not, and there is no objective criteria, the losers are going
to maybe suspect that they were not selected because of their
religious beliefs rather than the program they put forward. And
I think that the lack of dealing with this up front is a severe
problem.
I yield back the balance of my time and thank the Chairman
for----
Chairman Sensenbrenner. The question is on the Scott
amendment to the Sensenbrenner amendment.
Those in favor will say aye.
Opposed, no.
Noes appear to have it. Noes have it, and the amendment is
not agreed to.
Mr. Scott. Mr. Chairman, I'd like a recorded vote on that
one.
Chairman Sensenbrenner. A recorded vote will be ordered.
Those in favor of the Scott amendment to the Sensenbrenner
amendment will, as your names are called, answer aye; those
opposed, no, and the clerk will call the roll.
The Clerk. Mr. Hyde?
Mr. Hyde. No.
The Clerk. Mr. Hyde, no. Mr. Gekas?
Mr. Gekas. No.
The Clerk. Mr. Gekas, no. Mr. Coble?
Mr. Coble. No.
The Clerk. Mr. Coble, no. Mr. Smith?
[No response.]
The Clerk. Mr. Gallegly?
Mr. Gallegly. No.
The Clerk. Mr. Gallegly, no. Mr. Goodlatte?
Mr. Goodlatte. No.
The Clerk. Mr. Goodlatte, no. Mr. Chabot?
Mr. Chabot. No.
The Clerk. Mr. Chabot, no. Mr. Barr?
[No response.]
The Clerk. Mr. Jenkins?
Mr. Jenkins. No.
The Clerk. Mr. Jenkins, no. Mr. Hutchinson?
Mr. Hutchinson. No.
The Clerk. Mr. Hutchinson, no. Mr. Cannon?
Mr. Cannon. No.
The Clerk. Mr. Cannon, no. Mr. Graham?
Mr. Graham. No.
The Clerk. Mr. Graham, no. Mr. Bachus?
Mr. Bachus. No.
The Clerk. Mr. Bachus, no. Mr. Scarborough?
Mr. Scarborough. No.
The Clerk. Mr. Scarborough, no. Mr. Hostettler?
Mr. Hostettler. No.
The Clerk. Mr. Hostettler, no. Mr. Green?
Mr. Green. No.
The Clerk. Mr. Green, no. Mr. Keller?
Mr. Keller. No.
The Clerk. Mr. Keller, no. Mr. Issa?
Mr. Issa. No.
The Clerk. Mr. Issa, no. Ms. Hart?
Ms. Hart. No.
The Clerk. Ms. Hart, no. Mr. Flake?
Mr. Flake. No.
The Clerk. Mr. Flake, no. Mr. Conyers?
Mr. Conyers. Aye.
The Clerk. Mr. Conyers, aye. Mr. Frank?
[No response.]
The Clerk. Mr. Berman?
[No response.]
The Clerk. Mr. Boucher?
[No response.]
The Clerk. Mr. Nadler?
Mr. Nadler. Aye.
The Clerk. Mr. Nadler, aye. Mr. Scott?
Mr. Scott. Aye.
The Clerk. Mr. Scott, aye. Mr. Watt?
Mr. Watt. Aye.
The Clerk. Mr. Watt, aye. Ms. Lofgren?
Ms. Lofgren. Aye.
The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
Ms. Jackson Lee. Aye.
The Clerk. Ms. Jackson Lee, aye. Ms. Waters?
Ms. Waters. Aye.
The Clerk. Ms. Waters, aye. Mr. Meehan?
[No response.]
The Clerk. Mr. Delahunt?
[No response.]
The Clerk. Mr. Wexler?
[No response.]
The Clerk. Ms. Baldwin?
[No response.]
The Clerk. Mr. Weiner?
[No response.]
The Clerk. Mr. Schiff?
[No response.]
The Clerk. Mr. Chairman?
Chairman Sensenbrenner. No.
The Clerk. Mr. Chairman, no.
Mr. Barr. Mr. Chairman?
Chairman Sensenbrenner. Gentleman from Georgia, Mr. Barr?
Mr. Barr. No.
Chairman Sensenbrenner. Are there any other Members in the
chamber who wish to cast or change their votes?
The Clerk. Mr. Barr, no.
Chairman Sensenbrenner. If not, the clerk will report.
The Clerk. Mr. Chairman, there are 7 ayes and 20 nays.
Chairman Sensenbrenner. The amendment is not agreed to. Are
there further amendments? The prolific gentleman from Virginia.
Mr. Scott. Mr. Chairman, I have an amendment at the desk,
No. 8. And I just have two more amendments, Mr. Chairman, this
one and one more.
Chairman Sensenbrenner. Would you like to have them
considered en bloc?
Mr. Scott. No, Mr. Chairman. [Laughter.]
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to the amendment to H.R. 7, Offered by
Mr. Scott. Page 20, line 7 strike ``From'' and all that
follows----
Mr. Scott. Mr. Chairman, I'd ask unanimous consent that the
amendment be considered as read.
Chairman Sensenbrenner. Without objection. The gentleman's
recognized for 5 minutes.
[The amendment follows:]
Mr. Scott. Mr. Chairman, this amendment doubles the
technical assistance funds provided to small community and
religious-based organizations to operate programs. Because the
Department of Justice will be providing technical assistance
across the multitude of agencies and departments, in addition
to the level of assistance it may be required to provide--that
it may be required to provide, I believe that the proposed
funding level of $25 million is inadequate.
In addition to doubling the funding for technical
assistance, the amendment lays out several specific kinds of
technical assistance that should be provided by the Department
of Justice, and these include: assistance in creating
501(c)(3)'s; grant-writing assistance, which may include
workshops and reasonable guidance, information and referrals to
other non-governmental organizations that provide expertise in
accounting, legal issues, tax issues; information and guidance
on how to comply with Federal nondiscrimination provisions. It
also requires that priority be given to small non-governmental
organizations serving urban and rural communities. In addition,
it sets aside $5 million for technical assistance to help small
non-governmental agencies, organizations make their programs
accessible to the disabled.
Mr. Chairman, the critics of charitable choice have been
accused of not understanding the power or faith and accused of
wanting to defund programs like Habitat for Humanity and
Catholic Charities. That's wrong. The fact is that there is
broad bipartisan support for involving faith- and community-
based organizations to help our communities. We just shouldn't
have to sell off our civil rights to get those investments. By
providing technical assistance to community and religious
organizations, particularly those that are small, we can
actually increase their participation in Federal programs
without sabotaging civil rights.
I hope we would adopt the amendment, and I yield back the
balance of my time.
Mr. Chabot. Mr. Chairman.
Chairman Sensenbrenner. The gentleman from Ohio, Mr.
Chabot.
Mr. Chabot. Mr. Chairman, in conjunction with staff, we're
trying to figure out exactly what this amendment means, and
without a little more time, we just have to--have to oppose it,
although Mr. Scott is a tremendously effective Member of
Congress, so we would ask perhaps if we have a little more
time.
Chairman Sensenbrenner. Gentleman from Illinois, Mr. Hyde,
recognized for 5 minutes.
Mr. Hyde. Mr. Chairman, the last paragraph says, ``in
giving out such assistance described in this section, priority
shall be given to small, non-governmental organizations serving
urban and rural communities.''
Previous amendments were talking about who has the best
program rather than discriminating against unpopular or
minority religions. Now here we're supposed to give priority to
small----
Mr. Watt. Will the gentleman yield?
Mr. Hyde. Yes.
Mr. Watt. This is assistance--this is assistance to access
the funds and know how to technically comply with the law.
That's why it's written that way.
Mr. Hyde. Well, I understand, but you're giving a
preference to small, non-governmental organizations.
Ms. Jackson Lee. Would the Chairman yield? Would Mr. Hyde
yield?
Mr. Hyde. Yes, I'll yield.
Ms. Jackson Lee. Mr. Hyde, I know that in the course of
talking to a lot of religious groups in my community, one of
the apprehensions they had was understanding the Federal
system. I can't speak for Mr. Scott in terms of his provision
on--the last provision, but I know the technical assistance to
allow them or encourage them or provide a road map on how to
access these funds to be the good samaritan, I think is very
productive. It opens the doors to more applicants. It keeps
them within the guidelines of the regulations that will be
promulgated, and also, it will allow them to understand all
aspects of receiving Federal funds, and yet being able to do
the service. So I would hope that we would come to some
agreement on this amendment about technical assistance. I yield
back.
Mr. Watt. Will the former Chairman yield? Will Mr. Hyde
yield?
Mr. Hyde. I'll yield back so the Chairman can get the time.
Chairman Sensenbrenner. I move to strike the last word, and
recognize myself for 5 minutes.
Mr. Watt. Would the Chairman yield just for----
Chairman Sensenbrenner. Well, I'm going to make a deal you
can't refuse. I'm willing to accept the amendment if on paren
two you strike the word ``shall'' and replace it with ``may.''
And that gives the Justice Department flexibility but not a
mandate.
Mr. Scott. I'll agree to that. Ask unanimous consent that
after paren 2, ``Such assistance'', ``may'' instead of
``shall.''
Chairman Sensenbrenner. Without objection, so ordered.
And----
Mr. Watt. Would the Chairman yield just briefly while he's
thinking?
Chairman Sensenbrenner. I just want to make sure that the
Justice Department administers the funds. And page 20, you
strike the word ``from'' on line 7 through ``funds'', which
means that OJP does not have the mandate to administer this
program. I would just as soon that you omit that so that the
Office of Justice Programs does this, rather than something
else in the Justice Department.
Mr. Scott. I'd ask unanimous consent that that amendment be
adopted.
Chairman Sensenbrenner. Without objection, the amendment is
further modified, and without objection, the Scott amendment is
agreed to.
Are there further amendments?
Mr. Scott. I have an amendment.
Chairman Sensenbrenner. One more? You're not going to quit
when you're ahead? [Laughter.]
Chairman Sensenbrenner. The clerk will report the last
Scott amendment.
Mr. Scott. No. 11.
The Clerk. Amendment to the amendment to H.R. 7, Offered by
Mr. Scott. Page 10, line paren, period, end paren, add paren,
``Notwithstanding the provisions of this paragraph, title VI of
the Civil Rights Act of 1964 (42 USC 2000d et seq.)''----
Chairman Sensenbrenner. Without objection, the amendment is
considered as read. The gentleman will be recognized for 5
minutes.
[The amendment follows:]
Mr. Scott. Thank you, Mr. Chairman. I'm not sure whether
there's a--a problem with the bill or not, but it seems as
though this is a clarifying amendment to make sure that title
VI actually applies to direct grants. There is language in the
bill that says that funds are not aid to religion. In the past
that language has been used to specifically exempt the
application of title VI. Without this amendment, the bill will
say that title VI applies, but the provision of title VI only
applies to organizations in receipt of Federal funds, and the
bill seems to say that this is not direct aid to the
organization, and therefore, title VI doesn't apply.
Small organizations getting Federal funds under this
amendment would therefore be able to discriminate because they
wouldn't be covered by title VI because they're not receiving
Federal funds. In fact, they're not even covered by title VII,
so they're not covered by any civil rights bills, unless this
amendment is adopted saying that if you get money,
notwithstanding the no-aid-to-religion language, you're still
technically in receipt of Federal funds and title VI shall
apply.
Yield back.
Mr. Chabot. Mr. Chairman?
Chairman Sensenbrenner. Gentleman from Ohio, Mr. Chabot, is
recognized for 5 minutes.
Mr. Chabot. Thank you, Mr. Chairman. I'll be very brief. We
opposed the amendment. It's already crystal clear, already
covered. It's very unnecessary. It's already covered under
section E(e), and we yield back the balance of the time.
Chairman Sensenbrenner. The question is on----
Mr. Scott. Excuse me, Mr. Chairman, could you yield and say
what section you're looking at again? On what page and line, if
you could?
Mr. Chabot. We'll get the page for you. It's the bottom of
page 13, line 24.
Mr. Scott. 13, line 24.
Mr. Watt. Will the gentleman yield?
Mr. Scott. Will the gentleman yield?
Mr. Chabot. It's my time. I'll yield.
Mr. Scott. I would ask on page 9, line 20, you say that
Federal, State or local funds or other assistance received by a
religious organization constitutes aid to an individual and
families and not support for the religion or the organization's
religious beliefs. If that's the case, title VI, although it
applies, it only applies to organizations receiving funds. You
just said that they don't receive funds. And so what this
amendment says is whatever you meant by--in line 20, you really
mean it on page 14, where title VI applies. Now, does title VI
apply or not? And if you--because you said they're not
receiving funds, title VI only applies to organizations
receiving funds.
Mr. Chabot. Reclaiming my time, our contention is it does
apply, and it's clear, and there's really nothing else to
discuss.
Mr. Scott. Is it the legislative--would the gentleman
yield?
Mr. Chabot. I'll continue to yield.
Mr. Scott. Is it the legislative intent that the non-
discrimination provisions of title VI apply to everyone getting
money under this bill, whether they're technically in receipt
of funds by the organization or not? Is that the legislative
intent?
Mr. Chabot. Yeah. They must be receiving funds.
Mr. Scott. Well, you just said on page 9 that they're not
receiving funds. That means that title VI doesn't apply, and
they can discriminate at will, based on race, religion,
everything else.
Mr. Chabot. Title VI only applies to institutions receiving
funds from the government.
Mr. Scott. That's right. And does the language on page 9,
which says they don't receive funds, mean that title VI doesn't
apply to organizations receiving funds under this bill?
Mr. Chabot. I'm going to have to consult with staff here.
[Pause]
Chairman Sensenbrenner. The gentleman from Ohio.
Mr. Chabot. Relative to paragraph 2, it says, ``Federal,
State or local government funds or other assistance that is
received by a religious organization for the provision of
services under this section, constitutes aid to individuals and
families in need, the ultimate beneficiaries of such services,
and not support for religion or the organization's religious
beliefs or practices.'' So it seems.
Mr. Scott. As to title VI, title VI doesn't apply.
Mr. Chabot. I'll yield back the balance of my time. We
think----
Chairman Sensenbrenner. The question is on the adoption of
Scott amendment No. 11.
Mr. Watt. Mr. Chairman, I move to strike the last word.
Chairman Sensenbrenner. The gentleman from North Carolina's
recognized for 5 minutes.
Mr. Watt. I yield to Mr. Scott.
Mr. Scott. Well, Mr. Chairman, based on that reading, it is
obvious that no civil rights laws apply. Title VI applies to
organizations receiving Federal funds, and you've
conveniently--and this isn't the first time this is done. I
mean I've seen memos from some organizations, say if you can
get a not-state aid amendment into a bill, you have essentially
exempted the organization from title VI oversight. And that's
what the purpose of the language on line--page 9, line 20. It
is to say--make the fiction that the organization receiving
funds really didn't receive funds. And that fiction blows away
title VI of the civil rights laws and means that the
organization can discriminate any kind of way it wants. It's
not subject to title VII under religion, and if it's got less
than 15 employees----
Mr. Chabot. Will the gentleman yield?
Mr. Scott.--Title VII doesn't even kick in anyway.
Mr. Chabot. Will the gentleman yield?
Mr. Scott. They can discriminate based on race, religion,
any kind of thing they want to rely on with that language in
there, and all my little amendment says is that title VI anti-
discrimination provisions ought to apply.
Chairman Sensenbrenner. The time belongs to the gentleman
from North Carolina.
Mr. Watt. I yield to Mr. Chabot.
Mr. Chabot. Thank you. It's clear--we've reviewed it
again--it's clear that title VI, that it applies, and it's our
contention--we disagree on it, but it seems to be very clear to
us.
Mr. Watt. Reclaiming my time, I--for the life of me, it may
be clear to you, but it certainly is not clear to us. If you've
got a provision in the law that says this is not aid to the
organization, this is not money that's going to the
organization, it's going to individuals and families in need,
the ultimate beneficiaries of such service, and not support for
religion or the organization's religious beliefs or practices,
then basically you've said that it doesn't apply. Unless you
put some proviso at the end that says it does apply, which is
what Mr. Scott is trying to do.
Mr. Nadler. Mr. Chairman?
Chairman Sensenbrenner. The time belongs to the gentleman
from North Carolina.
Mr. Watt. I yield to Mr. Nadler.
Mr. Nadler. Thank you. I've been listening to this
discussion in some confusion, as I imagine some other people
have. What I seem to come away from is that Mr. Scott says--and
Mr. Watt--that without ameliorative language, title VI would
not apply. Mr. Chabot says, ``Oh, yes, title VI does apply.''
Everybody seems to agree that title VI should apply. The
question is over the interpretation.
I'd ask Mr. Chabot, do you agree that title VI should apply
in this situation?
Mr. Chabot. I agree it should, and it does. It seems to be
crystal clear.
Mr. Nadler. All right. And reclaiming my time, there's a
real disagreement here as to whether it does or not. Everybody
seems to agree that it should. So why not simply put in a
statement that says it does? What possible harm is there to
just clarify the point, Mr. Chabot?
Mr. Chabot. You could amend anything and repeat the
language redundancy upon redundancy. If it's clear already,
there's no reason to----
Mr. Nadler. Well, in this case--reclaiming my time----
Mr. Chabot.--amend something just for the purpose of
amending it.
Mr. Nadler. In this case, I would suggest and I would urge
that it would serve a great purpose--either you're right or
wrong. If you're right, the amendment's superfluous but
harmless. If you're wrong, the amendment is necessary. And
there would seem to be a lot of pretty good legal minds that
think that maybe you're wrong. So why not accept the amendment?
It seems to me that if we all agree that title VI should apply,
then simply saying we must oppose the amendment because,
although it doesn't do anything wrong, it doesn't do anything
right either, is a little over rigid. Why not satisfy
everybody? Get rid of an hour debate on the floor a couple
weeks from now, and say, either this language or some other
language that someone can draft if you don't like this language
for some reason, and say title VI applies.
Mr. Watt. Reclaiming my time, I yield to Ms. Lofgren.
Ms. Lofgren. I would just urge the same point made by Mr.
Nadler. We've had a lot of disagreements today on the merits of
what should be included, what shouldn't be included, but it
seems to me foolish when we agree that we can't clarify it. And
if we can have, you know, six lawyers arguing the point and not
agreeing here for 20 minutes, it seems to me there will be
lawyers across the country disagreeing. And to make it clear is
a reasonable thing to do, and I would urge that we do so.
Mr. Chabot. Would the gentlelady yield? I'm not sure whose
time it is over there.
Ms. Lofgren. It's Mr. Watt's time.
Mr. Watt. I yield to Mr. Chabot.
Mr. Chabot. Okay. I thank the gentleman for yielding. We
continue to believe that it's clear, that it's already covered,
that the language is unnecessary and redundant, but since it's
redundant, it's really not harmful, and so for that reason, we
will withdraw our objection to the amendment.
Chairman Sensenbrenner. The gentleman's time is expired.
The question is on Scott amendment No. 11 to the Sensenbrenner
amendment. Those in favor, will signify by saying aye.
Opposed, no.
The ayes have it, and the amendment is agreed to.
There being no further amendments, the question is on
adoption of the Sensenbrenner amendment as amended. Those in
favor will signify by saying aye.
Those opposed, no.
The ayes appear to have it.
Mr. Nadler. Mr. Chairman----
Chairman Sensenbrenner. This is on the Sensenbrenner
amendment. This is not on reporting the bill.
Mr. Nadler. Oh, sorry.
Chairman Sensenbrenner. The ayes appear to have it. The
ayes have it.
A reporting quorum is present.
Mr. Scott. Mr. Chairman?
Chairman Sensenbrenner. The question occurs on the motion
to report the bill, H.R. 7, favorably as amended.
Mr. Scott. Mr. Chairman?
Chairman Sensenbrenner. All in favor will say aye.
Mr. Scott. Mr. Chairman?
Chairman Sensenbrenner. Opposed, no.
The ayes appear to have it.
Mr. Scott. I was seeking recognition before the motion.
Before the vote. I sought recognition before the vote.
Chairman Sensenbrenner. The Chair will vitiate the voice
vote. For what purpose the gentleman from Virginia seek----
Mr. Scott. Mr. Chairman, I was just looking at the
amendment that was adopted, and there seems to be--there's a
technical glitch to it. Page 10, it should read ``line 2''
after the period. I think----
Chairman Sensenbrenner. Without objection, the amendment is
so modified.
The question now again occurs on the motion to report the
bill H.R. 7 favorably, as amended. All those in favor will say
aye.
Opposed, no.
The ayes appear to have it. The ayes have it. A rollcall is
requested. Those in favor of the motion to favorably report
will, as your names are called, answer aye; those opposed, no.
And the clerk will call the roll.
Mr. Nadler. I thought it was requesting a rollcall on the
Sensenbrenner amendment. I don't need a rollcall on this.
Chairman Sensenbrenner. We want one. This is final passage.
The clerk will call the roll.
The Clerk. Mr. Hyde?
Mr. Hyde. Yes.
The Clerk. Mr. Hyde, yes. Mr. Gekas?
Mr. Gekas. Yes, aye.
The Clerk. Mr. Gekas, aye. Mr. Coble?
Mr. Coble. Yes, aye.
The Clerk. Mr. Coble, aye. Mr. Smith?
[No response.]
The Clerk. Mr. Gallegly?
Mr. Gallegly. Aye.
The Clerk. Mr. Gallegly, aye. Mr. Goodlatte?
Mr. Goodlatte. Aye.
The Clerk. Mr. Goodlatte, aye. Mr. Chabot?
Mr. Chabot. Aye.
The Clerk. Mr. Chabot, aye. Mr. Barr?
Mr. Barr. Aye.
The Clerk. Mr. Barr, aye. Mr. Jenkins?
Mr. Jenkins. Aye.
The Clerk. Mr. Jenkins, aye. Mr. Hutchinson?
Mr. Hutchinson. Aye.
The Clerk. Mr. Hutchinson, aye. Mr. Cannon?
Mr. Cannon. Aye.
The Clerk. Mr. Cannon, aye. Mr. Graham?
Mr. Graham. Aye.
The Clerk. Mr. Graham, aye. Mr. Bachus?
Mr. Bachus. Aye.
The Clerk. Mr. Bachus, aye. Mr. Scarborough?
[No response.]
The Clerk. Mr. Hostettler?
Mr. Hostettler. Aye.
The Clerk. Mr. Hostettler, aye. Mr. Green?
Mr. Green. Aye.
The Clerk. Mr. Green, aye. Mr. Keller?
Mr. Keller. Aye.
The Clerk. Mr. Keller, aye. Mr. Issa?
Mr. Issa. Aye.
The Clerk. Mr. Issa, aye. Ms. Hart?
Ms. Hart. Aye.
The Clerk. Ms. Hart, aye. Mr. Flake?
Mr. Flake. Aye.
The Clerk. Mr. Flake, aye. Mr. Conyers?
[No response.]
The Clerk. Mr. Frank?
[No response.]
The Clerk. Mr. Berman?
[No response.]
The Clerk. Mr. Boucher?
[No response.]
The Clerk. Mr. Nadler?
Mr. Nadler. No.
The Clerk. Mr. Nadler, no. Mr. Scott?
Mr. Scott. No.
The Clerk. Mr. Scott, no. Mr. Watt?
Mr. Watt. No.
The Clerk. Mr. Watt, no. Ms. Lofgren?
Ms. Lofgren. No.
The Clerk. Ms. Lofgren, no. Ms. Jackson Lee?
[No response.]
The Clerk. Ms. Waters?
Ms. Waters. No.
The Clerk. Ms. Waters, no. Mr. Meehan?
[No response.]
The Clerk. Mr. Delahunt?
[No response.]
The Clerk. Mr. Wexler?
[No response.]
The Clerk. Ms. Baldwin?
[No response.]
The Clerk. Mr. Weiner?
[No response.]
The Clerk. Mr. Schiff?
[No response.]
The Clerk. Mr. Chairman?
Chairman Sensenbrenner. Aye.
The Clerk. Mr. Chairman, aye.
Chairman Sensenbrenner. Are there additional Members in the
chamber who desire to cast or change their vote? Gentleman from
Florida?
Mr. Scarborough. Aye.
The Clerk. Mr. Scarborough, aye.
Chairman Sensenbrenner. Are there additional Members who
desire to cast or change their vote? If not, the clerk will
report.
The Clerk. Mr. Chairman, there are 18 ayes and 5 nays.
Chairman Sensenbrenner. And the motion to favorably report
is agreed to. Without objection, the bill will be reported in
the----
The Clerk. Excuse me. 20 ayes, and 5 nays.
Chairman Sensenbrenner. The final rollcall is so modified.
Without objection, the bill will be reported in the form of a
single amendment in the nature of a--strike that.
Without objection, the Chairman is authorized to move to go
to conference pursuant to House rules. Without objection, the
staff is directed to make any technical and conforming changes.
All Members will be given 2 days, as provided by House rules,
in which to submit additional dissenting, supplemental, or
minority views.
The Chair extends his heartfelt thanks to the patience of
all Members, staff and audience for sticking us--with us
through this ordeal, and without objection, the Committee is
adjourned.
[Whereupon, at 8:00 p.m., the Committee was adjourned.]
Dissenting Views
We dissent from the provisions in H.R. 7 which fall within
the Committee on the Judiciary's jurisdiction (sec. 201 and
104).
We strongly believe that religious organizations can and
should play an important and positive role in meeting our
nation's social welfare needs. However, we cannot support
legislation which seeks to enlarge the role of religious
institutions by sanctioning government-funded discrimination
and by breaking down the historic separation between church and
state. This is why the legislation is opposed by a broad range
of groups, including civil rights organizations (the Leadership
Conference on Civil Rights, the NAACP, the NAACP Legal Defense
Fund, the ACLU, Americans United for Separation of Church and
State, the National Abortion Rights Action League, People for
the American Way, the National Gay and Lesbian Task Force, the
National Organization for Women), religious organizations (the
Interfaith Alliance, the Baptist Joint Committee, the American
Jewish Committee, the Union of American Hebrew Congregations,
the Unitarian Universalist Association of Congregations),
education organizations (the National Education Association,
the American Federation of Teachers), and organized labor
(AFSCME, Service Employees International Union).\1\
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\1\ Letter from the Coalition Against Religious Discrimination to
Members of the House of Representatives (June 25, 2001) (listing 51
national organizations that oppose charitable choice) (on file with the
House Judiciary Committee).
---------------------------------------------------------------------------
Summary of Legislation and Democratic Concerns
Section 201 of H.R. 7 adds a new section 1994A to title 42
of the U.S. Code designed to expand previously enacted
``charitable choice'' laws \2\ to include eight new categories
of Federal grant programs (relating to, among other things,
juvenile justice, crime, housing, job training, domestic
violence, hunger relief, seniors services, and education).
Under the bill, the Federal Government--or a State or local
government using covered Federal funds--is prohibited from
discriminating in the award of grants against religious
organizations on account of their religious character.\3\ This
right is enforceable by a lawsuit brought by a religious
organization against the local, State and/or Federal
Government.\4\
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\2\ The Personal Work and Work Opportunity Reconciliation Act of
1996, P.L.104-193, title I Sec. 104 (Aug. 22, 1996), 110 Stat. 2161, 42
U.S.C. 604a (hereinafter, the ``Welfare Reform Act''); The Community
Services Grant Program, P.L. 105-285, title II, Sec. 201 (Oct. 27,
1998), 112 Stat. 2749, 42 U.S.C. 9920; The Substance Abuse and Mental
Health Services Act, P.L. 106-310, 42 U.S.C. Sec. 300x-65; and The
Community Renewal Tax Relief Act of 2000 (H.R. 5662 included in
Consolidated Appropriations Act of 2001, P.L. 106-554 (Dec. 12, 2000),
114 Stat. 2763).
\3\ Manager's amendment to H.R. 7, section 201 adding proposed
section 1994A(c)(1)(B), 107th Cong. (2001).
\4\ Manager's amendment to H.R. 7, section 201 adding proposed
section 1994A(n), 107th Cong. (2001).
---------------------------------------------------------------------------
The bill extends the current exemption in the civil rights
law (section 702 of the Civil Rights Act of 1964) which permits
religious organizations to discriminate in employment on
account of religion to allow religious organizations to use
public funds to discriminate on account of religion.\5\ Because
the current section 702 exemption permits religious
organizations to discriminate in employment on the basis of so-
called ``tenets and teachings,'' the bill therefore would
permit religious groups to use taxpayer money to discriminate
not just on account of a prospective employee's religion, but
upon his or her failure to adhere to religious doctrine (e.g.,
being pregnant and unmarried, being gay or lesbian).\6\
Significantly, this ability to discriminate would supercede any
Federal, State, or local civil rights law or contracting
requirement or condition to the contrary.\7\
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\5\ Manager's amendment to H.R. 7, section 201 adding proposed
section 1994A(e), 107th Cong. (2001).
\6\ David M. Ackerman, Scope of the title VII Exemption Contained
in title II of H.R. 7, as Approved by the House Judiciary Committee,
CRS Report prepared for Rep. John Conyers, Jr. (July 3, 2001), at 2, 3
(on file with House Judiciary Committee).
\7\ Several features of H.R. 7 make it clear that the legislation
will supercede State and local laws:
---------------------------------------------------------------------------
First, subsection (d) specifies that a religious organization
receiving Federal funds ``shall have the right to retain its autonomy
from Federal, State, and local governments, including such
organization's control over the definition, development, practice and
expression of its religious beliefs.'' The same subsection operates to
protect the organization's internal governance against any governmental
interference. Under the Constitution's Supremacy Clause, this
subsection would take precedence over a State law, for example,
protecting gays and lesbians, unmarried, or pregnant individuals from
employment discrimination.
Second, subsection (e) specifies that a provision in a program
receiving Federal funds under a covered program--which would include
State programs that receive and distribute Federal funds--that is
``inconsistent with or would diminish the exercise of [a religious]
organization's autonomy'' as recognized in section 702 of the Civil
Rights Act or the bill generally ``shall have no effect.'' This broad
language would serve to negate, for example, a condition in a State
grant program specifying that entities that received funds would need
to agree not to discriminate on the bases of specified protective
categories in employment.
Third, H.R. 7 does not include language from the Welfare Reform Act's
charitable choice law specifying that nothing in that law is to
``preempt any provision of a State constitution or State statute that
prohibits or restricts the expenditure of State funds in or by
religious organizations.'' Given that Congress has previously opted to
include language deferring to State law, we can only presume that H.R.
7 was specifically designed to supercede State law.
In an effort to prevent the legislation from being
unconstitutional under the Establishment Clause, the bill
includes several purported first amendment safeguards. Thus,
the legislation states that if a beneficiary objects to the
religious character of a provider, the governmental entity is
required to provide an alternative service that is
unobjectionable on religious grounds.\8\ The bill also
specifies that religious organizations receiving grants may not
discriminate against beneficiaries on the basis of their
religion, and that religious organizations receiving indirect
assistance (e.g., a voucher) may not deny admission on the
basis of religion.\9\ In addition, the legislation states that
government funds may not be used for sectarian instruction,
worship, or proselytization, and that if the religious
organization offers such activity, it is to be ``voluntary''
and ``offered separate'' from the government funded
program.\10\
---------------------------------------------------------------------------
\8\ Manager's amendment to H.R. 7, section 201 adding proposed
section 1994A(g), 107th Cong. (2001).
\9\ See infra note 60.
\10\ Manager's amendment to H.R. 7, section 201 adding proposed
section 1994A(j), 107th Cong. (2001).
---------------------------------------------------------------------------
Enforcement of these strictures is largely left to the
religious organization. Thus, the religious organization is
expected to file a certificate that it is aware of and will
comply with the limitations on the use of its funds and the
voluntary and separate requirement.\11\ Religious organizations
are also supposed to conduct an annual ``self audit'' of their
duties under the legislation.\12\
---------------------------------------------------------------------------
\11\ Manager's amendment to H.R. 7, section 201 adding proposed
section 1994A(j), 107th Cong. (2001).
\12\ The only outside audit permitted under H.R. 7 is with regard
to separate financial accounts set up to hold the government funds.
Manager's admendment to H.R. 7 section 201 adding proposed section
1994A(i)(2)(A). The legislation also includes an annual authorization
of $50 million (from the Office of Justice Programs and the COPS on the
Beat program) to give small religious organizations training and
technical assistance in seeking grants. Manager's admendment to H.R. 7,
section 201 adding proposed section 1994A(o)(1).
---------------------------------------------------------------------------
Finally, Subsection (l) of the legislation would introduce
a major change to our social service programs, granting
agencies the discretion to take any or all of the funds in
programs covered by the legislation (e.g., for housing, hunger
relief and the like) and convert it into an indirect aid
program by which beneficiaries could provide ``vouchers'' to
the religious organization, which could in turn receive Federal
funds. Such ``voucherized'' programs would be exempt from the
requirement that the religious organization not discriminate
against beneficiaries on religious grounds as well as the
requirement that any sectarian instruction, worship, or
proselytization be ``voluntary'' and ``offered separate'' from
the government funded program.
Section 104 of H.R. 7 is a ``tort reform'' provision. It
supersedes State law to limit businesses from civil liability
for donated equipment, the provision of their facilities, and
the provision of their motor vehicles or aircrafts to nonprofit
organizations.\13\
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\13\ Section 104 would create an extremely high standard to prove
corporate negligence, gross negligence or intentional misconduct. This
means that unless the corporation knew at the time of donation that the
equipment, motor vehicle or aircraft or facility would likely injure or
kill the user, the corporation could not be held liable. As a result, a
corporate donor would be virtually immune from responsibility for
injuries it may have caused.
---------------------------------------------------------------------------
We cannot support the Judiciary-reported provisions of the
legislation because in an effort to increase the role of
religion in meeting society's needs, the legislation sacrifices
two of our nation's most fundamental principles--equal
protection and the separation of church and state.
In terms of equal protection, the legislation runs counter
to the long held principle that it is unacceptable for any
group or entity to discriminate with taxpayer funds. Given that
the bill's proponents claim that government funds will only be
used for wholly secular purposes, we cannot understand why it
is necessary to sanction discrimination in employment on
account of religion. Nor can we understand why the bill permits
religious organizations to discriminate on the basis of
``tenets and teachings,'' which sweep in employment
discrimination against gays and lesbians, unmarried pregnant
women, women who have had an abortion, and persons who advocate
reproductive choice. Equally disturbing is the fact that the
bill sets aside not only Federal civil rights protections, but
also State and local laws and contracting requirements designed
to protect against discriminating in employment with government
funds.
With regard to the separation of church and state, we are
concerned that the supposed ``safeguards'' included in the
manager's amendment include several loopholes and are unlikely
as a practical matter to insure that the Establishment Clause
is respected. At the same time, the legislation is likely to
serve to entangle government and religion, and in so doing,
diminish the respect of our citizens for each. Recent press
reports indicate that such inappropriate entanglement has
already begun.\14\
---------------------------------------------------------------------------
\14\ See discussion of alleged quid pro quo between Bush
administration and Salvation Army, supra. p. 13.
---------------------------------------------------------------------------
We also believe it is somewhat inconsistent for the
Administration to be advocating this legislation as a tool to
respond to poverty and other social ills, when H.R. 7 does not
authorize a single dollar in additional funds for any of the
social service programs covered by the bill. Even more
problematic is that cuts in the Administration's budget assure
that even if H.R. 7 is enacted, it will only serve to pit
religious organizations, secular non-profits, and government
agencies against each other for an ever declining share of
Federal funds. Finally, in terms of the State liability law
limits included in the bill, we fear that unilateral changes of
this nature undermine federalism and expose the most vulnerable
members of society to greater risk of accident and harm from
faulty equipment and dangerous facilities.
We support the notion that government can and should seek
increased involvement of non-profits--including religious
organizations--in meeting our nation's social welfare needs. At
present, tax preferences provided to non-profits by the Federal
Government total an estimated $25.8 billion per year.\15\ Many
of us are supportive of efforts to extend these tax benefits
even further (although such extension was not sufficiently
important for the Administration to include in their recently
passed $1.35 trillion tax legislation).
---------------------------------------------------------------------------
\15\ Staff of Joint Economic Committee, 106th Cong., Tax
Expenditures: A Review and Analysis 3 (Comm. Print 1999).
---------------------------------------------------------------------------
In addition, we would note that the Federal Government
already provides billions upon billions of dollars of direct
annual support to non-profit organizations, including
religiously affiliated organizations who have set up 501(c)(3)
entities and operate within constitutional boundaries not
required by H.R. 7. President Bush admitted as much in a recent
speech when he acknowledged that under current law, Federal
funds already go to child care and Head Start programs housed
in churches and pay for health care in Catholic, Baptist, or
other denominational hospitals. Illustrative of this success
are Catholic Charities USA--which receives $600 million per
year in government funds \16\ and is able to offer services
through more than 1400 agencies, institutions, and
organizations,\17\ and Lutheran Services in America, which
serves over 3 million persons annually in over 3,000
communities.\18\
---------------------------------------------------------------------------
\16\ Catholic Charities USA, http://www.catholiccharitiesusa.org/
who/stats.html.
\17\ Catholic Charities USA, http://www.catholiccharitiesusa.org/
who/history.html.
\18\ Lutheran Services in America, http://www.lutheranservices.org/
whoweare.htm.
---------------------------------------------------------------------------
In fact, when President Bush visited Habitat for Humanity
and proclaimed that it was an example of the need for
charitable choice, the president and founder of Habitat for
Humanity said he did not need new laws, and he insisted that he
was ``thriving'' under present laws. Contrary to President
Bush's recent assertions, we are unaware of anyone who opposes
these organizations operating public programs and providing
services. They are funded like all other private organizations
are funded: they are prohibited from using taxpayer money to
advance their religious beliefs and they are subject to the
civil rights laws. Any program which can be funded under H.R.
7, as reported, can be funded now, except that under this bill
the sponsoring organizations can refuse to comply with the
civil rights laws.
Charitable Choice represents a false promise to struggling
communities who desperately need resources. While it is
described as a plan to help faith-based organizations receive
and administer government grants, Charitable Choice in practice
only represents an assault on our civil rights laws. It is also
more clear than ever with the recent reports from the
Washington Post that a sweeping roll back in civil rights
protections at all levels is at the core of charitable choice.
Certainly, government can do more in collaboration with
religious and non-profit organizations. We can expend funds to
help religiously affiliated groups understand and comply with
the law and seek Federal funding.\19\ Also, we can encourage
religious leaders to serve on government task forces fighting
social ills, and insure that government offices provide
appropriate information on social services offered by houses of
worship. Unfortunately, H.R. 7 does not focus on bipartisan
common sense initiatives which would move our nation forward.
Instead it divides us along lines of religion, sexual status,
marital status, and race. For these and the reasons set forth
herein, we dissent from the Judiciary-reported provisions in
H.R. 7.
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\19\ ``In this regard, President Bush did request that Congress
place $700 million in a `Compassion Capital Fund' to support charitable
organizations providing social services, claiming it was a ``noble
mission'' during his February 27, 2001 Address to a Joint Session of
Congress. Yet, the President's budget proposal only included $89
million for the fund. Even this reduced request was ignored in the
budget resolution adopted by the Majority.
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I. H.R. 7 Allows Religious Organizations Receiving Taxpayer Funds to
Discriminate in Employment on Account of Religion
Our principal objection to the legislation is that it
permits taxpayer funds to be used to discriminate in
employment. This violates one of the most fundamental
principles of civil rights, first enunciated by President
Franklin D. Roosevelt by Executive Order 60 years ago that the
government should not fund employers, religious or otherwise,
who engaged in discrimination on account of race, religion,
color or national origin.\20\
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\20\ Exec. Order 8802 (June 25, 1941). This fundamental principle
of non-discrimination subsequently was reflected in other executive
orders by every future President.
---------------------------------------------------------------------------
We are perplexed why the Majority has so fervently sought
to extend the right to discriminate on religious grounds given
that they have separately argued that the funds referenced
under the bill will be used for wholly secular purposes. They
cannot have it both ways--either the Federal funds will be used
for religious purposes, in which case there may be a
justification for tolerating religious discrimination (but
would render the legislation constitutionally suspect); or the
funds will be used in a non-sectarian manner, in which case
there is no reason to discriminate on the basis of religion. As
Democratic Members made clear at the markup, cooking soup and
giving it to the poor can be done equally well by persons of
all religious beliefs.
Even more problematic is the bill's sanctioning of
discrimination based on religious ``tenets and teachings.''
Under this doctrine, religious institutions are permitted to
discriminate in employment against anyone who disagrees with or
conducts themselves in a manner at odds with any form of the
religious institutions' doctrine or practices.\21\ Thus, under
the bill, an organization could use taxpayer funds to
discriminate against gays and lesbians,\22\ against divorced
persons,\23\ against unmarried pregnant women,\24\ against
women who have had an abortion, persons who use birth control,
persons who favor reproductive rights,\25\ or persons involved
in interracial dating or marriage.\26\ Again, while there may
be some conceivable justification for this type of
discrimination in the context of a religious organization
employing persons associated with its religious function, there
is no legitimate justification for extending such
discrimination with regard to government-funded secular
services for the poor and needy, as the bill does.
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\21\ See infra note 6.
\22\ See Hall v. Baptist Memorial Healthcare Corp., 215 F. 3d 618
(6th Cir. 2000).
\23\ See Little v. Wuerl, 929 F. 2d 944 (3rd Cir. 1991).
\24\ See Cline v. Catholic Diocese of Toledo, 206 F. 3d 651 (6th
Cir. 2000).
\25\ See Maguire v. Marquette University, 814 F. 2d 1213 (7th Cir.
1987).
\26\ NAACP Legal Defense Fund Information Sheet. The report states,
``under the language of [charitable choice], Bob Jones University could
become a provider of services under one or more Federal programs and
require that employees . . . subscribe to its religious tenets and not
engage in interracial dating . . .''. (On file with the House Judiciary
Committee).
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Notwithstanding the series of changes made to the
employment discrimination language pursuant to the manager's
amendment, there is no question that after all is said and
done, the bill will sanction this form of tenets and teachings
discrimination. In a Memorandum issued subsequent to the
Committee Markup, the Congressional Research Service stated
that the bill would authorize this type of discrimination,
noting that ``[j]udicial decisions have held the [religious]
exemption to apply to discrimination based on tenets,
teachings, beliefs, behavior and practices.'' \27\ The CRS
Memorandum then goes on to cite a long list of cases where
persons were discriminated against by religious organizations
because, among other things, they failed to have their first
marriage properly annulled, they were gay, they had
extramarital sex, they supported reproductive choice, or they
were actively involved in a church which had gay and lesbian
members.\28\
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\27\ See infra note 6.
\28\ Id.
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We would further note that the protections against
discrimination in H.R. 7 on the basis of race are not complete.
The application of the ``ministerial exception'' to any
publicly funded positions also should be given serious
consideration and review. There is a question as to how
enforceable title VII's protections against racial
discrimination in employment will be once publicly funded
religious discrimination is allowed. Given that the eleven
o'clock hour is still one of the most segregated hours in
America, an all white religious organization could simply tell
otherwise qualified minority candidates of the same religion,
we only hire those that belong to our church.
The non-discrimination language included in the bill not
only sets aside Federal civil rights laws, it goes so far as to
obviate State and local laws and Federal, State, and local
contracting requirements intended to safeguard against
religious discrimination in employment. Thus if a State had
decided that as a matter of public policy it did not want to
tolerate religious discrimination by a non-profit engaged in
secular affairs, or that religious organizations who utilized
State provided funds should not be permitted to discriminate,
or even that they should be able to discriminate on account of
religion, but not on account of ``tenets and teachings,'' all
of these laws and contracting requirements would be set aside
under H.R. 7. To us, this turns the principle of federalism and
respect for State prerogatives on its head.
The consequences of H.R. 7's superceding State civil rights
protections are quite extreme. Under the legislation, a
national religious organization could choose to accept a single
Federal grant and attempt to use that as a shield to avoid laws
protecting gay and lesbian employment rights in all 50 States.
For example, Maryland's law on domestic partner benefits could
be set aside under H.R. 7. This means that even if the Bush
administration abandons its proposal to issue an administrative
ruling setting such State and local civil rights protections
aside,\29\ opponents of such protections would be able to
accomplish even greater immunity from such laws under H.R. 7.
---------------------------------------------------------------------------
\29\ Dana Milbank, Bush Drops Rule On Hiring of Gays; Democrats:
``Faith Based'' Initiative at Risk, WASHINGTON POST, July 11, 2001, at
A10.
---------------------------------------------------------------------------
At its core, the Majority and supporters of H.R. 7
challenge the fundamental notion of ``protected class'' as
currently recognized by our civil rights laws. The Majority has
suggested that organizations should be able to discriminate in
employment to select employees who share their vision and
philosophy. Under current civil rights laws, employers can
discriminate against a person based on their views on the
environment, abortion, gun control, or just about any other
basis. Employers can also select staff based on their
commitment to serve the poor or whether they think prospective
applicants have compassion to help others kick drugs. But
because of a sorry history of discrimination against certain
Americans, we have had to establish ``protected classes'' and
under present law employers, including religious organizations
who sponsor Federal programs, cannot discriminate against an
individual based on race, sex, national origin, or religion.
It is for these reasons that civil rights groups such as
the NAACP, the NAACP Legal Defense Fund and the Leadership
Conference on Civil Rights are so strongly opposed to the bill.
They have nothing against religion, but they do believe we do
nothing to help poor and needy individuals if we tolerate more
discrimination. Thus, on July 8, 2001, Julian Bond, the
Chairman of the NAACP, the nation's oldest and largest civil
rights organization declared that ``[t]he Administration's
faith-based plan threatens to erase sixty years of civil rights
protections.'' \30\ The NAACP Legal Defense Fund has written
that the religious discrimination provisions in charitable
choice legislation are ``wholly inconsistent with longstanding
principle that Federal moneys should not be used to
discriminate in any form.'' \31\ Wade Henderson, the Executive
Director of the Leadership Conference on Civil Rights, the
nation's most broadly based civil rights organization, has
testified that ``charitable choice threatens to erode [the
fundamental principle of non-discrimination] by allowing
Federal funds to go to persons who discriminate in employment
based on religion.'' \32\
---------------------------------------------------------------------------
\30\ Statement by Julian Bond, Chairman, NAACP at NAACP National
Convention, July 8, 2001, at 16. (On file with House Judiciary
Committee).
\31\ See infra note 26.
\32\ Statement by Wade Henderson, Executive Director, Leadership
Conference on Civil Rights before the Committee on the Judiciary, U.S.
Senate, 107th Cong. (June 6, 2001) at 3.
---------------------------------------------------------------------------
Given the obvious and real nature of our concerns regarding
the bill's sanctioning of employment discrimination, we are not
surprised that the legislation's supporters have resorted to a
series of myths to justify H.R. 7. Of course, upon close
scrutiny, none of these myths can be sustained:
Myth 1--Religious discrimination is needed so that
small religious organizations can share religious
employees between non-secular and secular functions
This claim suffers from several legal deficiencies. As a
threshold matter, title VII only applies to organizations which
employ 15 or more persons.\33\ This means that extension of the
section 702 exemption is not needed to permit small religious
organizations to be able to hire persons of their own religion.
Second, the courts have said that under the First Amendment
Free Exercise Clause, religious institutions are entitled to a
``ministerial exception'' permitting them to bypass title VII's
prohibitions on discrimination with respect to race, gender,
and national origin to hire their clergy and spiritual
leaders.\34\ Again, extending the reach of the section 702
employment discrimination exemption will do little to help
religious groups share the costs of their clergy between their
religious and secular accounts.
---------------------------------------------------------------------------
\33\ See infra note 6.
\34\ Id.
---------------------------------------------------------------------------
The 15 person threshold requirement and ministerial
exception should therefore cover most of the needs of small
religious organizations. To the extent there is any gap in
coverage, we note that the Majority never proposed a tightening
amendment. Instead, H.R. 7 appears to use the issue of small
religious organization needs as an excuse to justify wide scale
relief from our anti-discrimination laws.
Myth 2--We should extend the religious civil rights
employment exemption because it is based on previous
charitable choice laws signed by President Clinton and
which have been implemented without controversy
This contention also fails for a variety of reasons. Most
obvious is the notion that a previous act of Congress cannot
and should not bind a future Congress, particularly with regard
to a dubious legal principle. Beyond that it is important to
note that there are numerous, major differences between H.R. 7
and other charitable choice laws. Among other things, H.R. 7
covers a far broader range of programs and includes a far
larger pot of funds than previous charitable choice laws.\35\
H.R. 7 also includes a variety of different safeguards and
permits a broader range of religious discrimination with
respect to beneficiaries than previous charitable choice
laws.\36\
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\35\ Based on the Bush Budget, the funds covered by the previous
charitable choice laws total approximately $21 billion ($3 billion for
SAMHSA; $16 billion for TANF; $2.4 billion for Community Development
Block Grants). By contrast, the social service programs covered by H.R.
7 total at least $47 billion ($.3 billion for juvenile justice; $6.5
billion for crime control and domestic violence; $28 billion for
housing; $7 billion for job training; $1 billion for seniors services;
$4.1 billion for hunger; $1.4 billion for GED and after school
programs).
\36\ See notes 10, 60, 61 and accompanying text.
---------------------------------------------------------------------------
In addition, the legislative history of the previous
charitable choice laws makes clear that these laws were never
carefully considered or debated. We begin with the fact that
until this Congress there has never been a hearing on
charitable choice legislation in the House or the Senate. The
Judiciary Committee--which has jurisdiction over the issue--has
never been involved in any previous charitable choice
legislation. Moreover, when charitable choice has been added to
legislation in the past, it has often been done at the very end
of the process, with no opportunity for Democratic input or
amendment.\37\
---------------------------------------------------------------------------
\37\ The charitable choice provision of the Welfare Reform Act was
offered in conference. It was not included in the House bill. Democrats
never had a chance to strike the provision because conferees were never
given an opportunity to offer amendments. Charitable choice was also
added to the re-authorization of Community Services Block Grant (CSBG)
in the 105th Congress as part of a larger Human Services
reauthorization that included Head Start, CSBG, and Low Income Heating
Energy Assistance Program (LIHEAP). It was the last item to be
considered by the conferees due to the controversy. This marked the
first time that Charitable Choice was debated on the House floor. The
debate occurred at 1 a.m. Charitable Choice language was signed into
law twice in the 106th Congress on the SAMHSA programs--as part of H.R.
4365, the Children's Health Act of 2000, P.L. 106-310, and as part of
the omnibus end of year spending bill, H.R. 4577, P.L. 106-554. The
language in H.R. 4577 replaced the language signed into law pursuant to
H.R. 4365. In both cases, the charitable choice provisions were added
without any opportunity to offer amendments.
---------------------------------------------------------------------------
It is also misleading to contend that prior charitable
choice laws have been enacted with the endorsement of President
Clinton. To the contrary, shortly after the Welfare Reform Act
was enacted, the Clinton administration proposed amendments to
clarify the charitable choice provisions to ensure that
religiously affiliated organizations could not participate if
they were ``pervasively sectarian.'' \38\ Additionally, in
connection with the signing of the Community Services Block
Grant law in 1998 and the Substance Abuse Mental Services Act
in 2000, President Clinton specifically noted that the
Department of Justice believed charitable choice was
potentially unconstitutional, and as a result construed the law
as forbidding the funding of pervasively sectarian
organizations.\39\
---------------------------------------------------------------------------
\38\ The Clinton administration filed the following comments in
connection with the proposed amendments: ``We recommend amending sec.
104 to clarify that it does not compel or allow States to provide TANF
benefits through pervasively sectarian organizations, either directly
or through vouchers redeemable with these organizations. . . .
[P]rovisions of sec. 104 and its legislative history could be read
inconsistent with the constitutional limits.'' The Administration's
amendment to charitable choice failed to be included in a final package
of technical amendments to the welfare laws adopted by Congress.
\39\ Statement on Signing the Children's Health Act of 2000, 36
Weekly Comp. Pres. Doc. 2504 (October 17, 2000):
---------------------------------------------------------------------------
The Department of Justice advises, however, that this
provision would be unconstitutional to the extent that it
were construed to permit governmental funding of
organizations that do not or cannot separate their
religious activities from their substance abuse treatment
and prevention activities that are supported by SAMHSA aid.
Accordingly, I construe the act as forbidding the funding
of such organizations and as permitting Federal, State, and
local governments involved in disbursing SAMHSA funds to
take into account the structure and operations of a
religious organization in determining whether such an
organization is constitutionally and statutorily eligible
to receive funding.
President Clinton stated similarly at the 1998 signing of The Community
Services Grant Program:
The Department of Justice advises, however, that the
provision that allows religiously affiliated organizations
to be providers under CSBG would be unconstitutional if and
to the extent it were construed to permit governmental
funding of ``pervasively sectarian'' organizations, as that
term has been defined by the courts. Accordingly, I
construe the act as forbidding the funding of pervasively
sectarian organizations and as permitting Federal, State,
and local governments involved in disbursing CSBG funds to
take into account the structure and operations of a
religious organization in determining whether such an
organization is pervasively sectarian.
Fourth, current charitable choice laws have barely been
implemented, much less analyzed for effectiveness. As of
September 2000, 50 States had not implemented policies to
facilitate the participation of faith-based organizations in
charitable choice programs.\40\ It is also incorrect to assert,
as proponents have done, that prior charitable choice laws have
not been subject to legal challenge. Even on the very thin
implementation record before us, the legal and constitutional
issues raised by charitable choice have already engendered five
legal challenges.\41\
---------------------------------------------------------------------------
\40\ Center for Public Justice, ``States Fail Charitable Choice
Check-Up,'' Press Release (Oct. 5, 2000).
\41\ See American Jewish Congress and Texas Civil Rights Project v.
Bost 00-A-CA-528-SS (W.D. Tex.)(challenging the Jobs Partnership of
Washington County's use of State funding to buy Bibles and give Bible
instruction for its welfare-to-work training program); AJCongress v.
Bernik, No. 317896 (Superior Court, County of San Francisco)(alleging
that the California Employment Development Department solicited
proposals for $5 million to be earmarked solely for faith-based, but
not secular, groups); Freedom From Religion Foundation v. Thompson 00-
C-0617C (W.D. Wis.) (challenging the use of State funds by Faithworks,
an alternative to Alcoholics Anonymous, which encourages belief in a
higher power); Lara v. Tarrant County (Tex. Supreme Court) (challenging
a prison chaplain's clear preference for Christianity when approving
volunteer teachers for a prison-funded education program); Pedreira v.
Kentucky Baptist Homes, C/A 3:00CV-210-SKY 2001 (W.D. Ky.)(challenging
the firing of a lesbian worker from a State-funded residential child
care run by ministries).
Myth 3--Even outside of charitable choice, various
religiously affiliated organizations--such as hospitals
and colleges--receive Federal funds and regularly
---------------------------------------------------------------------------
discriminate on account of religion
This argument was trotted out several times during our
markup. It is somewhat difficult to respond to, because to our
knowledge, the Majority has not cited any specific examples. As
best we can ascertain, the Majority bases their argument on the
fact that religious colleges are receiving Pell Grants, and
religious hospitals are receiving Medicaid and Medicare
payments, at the same time they utilize the section 702
religious exemption. The principal flaw in this contention is
that funds received from Pell Grants, Medicare, and Medicaid
are indirect. They flow from choices made by beneficiaries, not
the government. As a result, to the extent any such religiously
affiliated hospital or college is engaged in discrimination, it
is not with direct government funds.\42\
---------------------------------------------------------------------------
\42\ Siegel v. Truett-McConnell College, Inc. confirms the
important distinction between direct and indirect Federal aid. The
plaintiff in Siegel argued that the college received substantial funds
from Federal and State sources, such as Pell grants, and therefore was
not entitled to the title VII exemption. The Court ruled that the
college was entitled to the title VII exemption because there was no
``direct Federal or State subsidy . . .'' and that ``[t]he government
does not directly pay for any one teacher's salary, including Mr.
Siegel's.'' The court went on to distinguish this case involving
indirect benefit (where students choose their college) from a direct
benefit (where government provides a direct contract for services).
Siegel v. Truett-McConnell College, 13 F. Supp.2d 1335, 1343-45 (N.D.
Ga. 1994), aff'd, 73 F.3d 1108 (11th Cir. 1995).
---------------------------------------------------------------------------
If a limited number of religious institutions are receiving
Federal grants at the same time they are engaging in employment
discrimination, it is possible the Majority does not realize
the institutions may be doing so in violation of Federal law.
Certainly, to the extent they are receiving Federal funds from
grants concerning crime control, housing, job training,
domestic violence, and education--all programs covered by H.R.
7--they would not be able to lawfully discriminate on account
of religion, as those laws contain specific provisions
preventing religious discrimination.\43\
---------------------------------------------------------------------------
\43\ See Omnibus Crime Control and Safe Streets Act of 1998, 42 U.
S. C. Sec. 3701 et seq. (includes a religious nondiscrimination
provision at 42 U. S. C. Sec. 3789d(c)); federally assisted housing
programs, 42 U. S. C. Sec. 13601 et seq. (includes a nondiscrimination
provision requiring compliance with all civil rights laws at 42 U. S.
C. Sec. 13603(b)(2)); Workforce Investment Act of 1998, 29 U. S. C.
Sec. 2801 et seq. (includes a religious nondiscrimination provision at
29 U. S. C. Sec. 2938); domestic violence programs, see, e.g., 42 U. S.
C. Sec. 10603 (includes a religious nondiscrimination provision at 42
U. S. C. Sec. 10604(e)); the Child Care Development Block Grant Act of
1990, 42 U. S. C. 9858 et seq. (includes a modified religious
nondiscrimination provision at 42 U. S. C. Sec. 9858L); the Community
Development Block Grant Program of the Housing and Community
Development Act of 1974, 42 U. S. C. Sec. 5301 et seq. (includes a
nondiscrimination provision requiring compliance with all civil rights
laws at 42 U. S. C. Sec. 5304 (b) (2)); and the Job Access and Reverse
Commute grant program of the Federal Transit Act of 1998, 49 U. S. C.
Sec. 5309 note (includes a religious nondiscrimination provision at 49
U. S. C. Sec. 53329(b)).
Myth 4--Using Federal funds to discriminate in
---------------------------------------------------------------------------
employment has been upheld by the courts
This contention rests on the Majority's misreading of the
Supreme Court's decision in Corporation of the Presiding Bishop
v. Amos. \44\ That case did uphold the religious exemption set
forth in section 702 of the Civil Rights Act, however, it did
not involve any use of Federal funds. As a matter of fact, the
Court went out of its way to distinguish the title VII
exemption from other government programs that might advance
religion through financial support or active involvement of the
sovereign religious activity. Specifically, the Court held the
exemption was ``rationally related to the legitimate purpose of
alleviating significant governmental interference with the
ability of the religious organizations to define and carry out
their religious missions.'' \45\ At most, permitting such
discrimination was an ``accommodation'' required by the First
Amendment's Free Exercise Clause that minimized the burden on
religious organizations to predict which of their activities a
secular court might consider religious.\46\ Obviously, none of
these factors or justifications are present in H.R. 7, which
clearly involves the use of Federal funds for wholly secular
purposes and activities.\47\
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\44\ Corporation of Presiding Bishop v. Amos, 483 U.S. 327 (1987).
\45\ 483 U.S. at 339. As Justice Brennen noted in upholding the
section 702 religious exemption for privately funded, religious non-
profit activities: ``What makes the application of a religious-secular
distinction difficult is that the character of an activity is not self-
evident. As a result, determining whether an activity is religious or
secular requires a searching case-by-case analysis. This results in
considerable ongoing government entanglement in religious affairs.''
483 U.S. at 343.
\46\ 483 U.S. at 334-35.
\47\ Additionally, because H.R. 7 prohibits direct funds being used
for sectarian instruction, worship, or proselytization, jobs used with
taxpayer money would be beyond the scope of Amos. Therefore, none of
the entanglement concerns raised by Amos would be applicable to an
analysis of publicly funded secular positions.
---------------------------------------------------------------------------
Nor is it true, as proponents claim, that Justice Brennan's
separate opinion in Amos would lend support to H.R. 7's
extension of the religious exemption. He wrote, ``the potential
for coercion caused by such a provision is in serious tension
with our commitment to individual freedom of conscience in
matters of religious belief.'' \48\
---------------------------------------------------------------------------
\48\ 483 U.S. 327, 340-41.
---------------------------------------------------------------------------
If anything, the case law on this point supports the
contention that it is unconstitutional to use Federal funds to
engage in discrimination. This was the holding of the district
court in Dodge v. Salvation Army. \49\ That case involved a
religious organization--the Salvation Army--which used public
funds to exclude members of the Wiccan faith from employment.
The court found that such action was unconstitutional under the
Establishment Clause because it treated religious non-profits
preferably to non-religious non-profits.\50\
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\49\ Dodge v. Salvation Army, 1989 WL 53857 (S.D. Miss. 1989).
\50\ The court concluded that such an arrangement was
unconstitutional because:
The benefits received by the Salvation Army were not
indirect or incidental. The grants constituted direct
financial support in the form of a substantial subsidy, and
therefore to allow the Salvation Army to discriminate on
the basis of religion, concerning the employment of the
Victims' Assistance Coordinator, would violate the
Establishment Clause of the First Amendment in that it has
a primary effect of advancing religion and creating
excessive government entanglement.
II. H.R. 7 Breaks Down the Historic Separation Between Church and State
With regard to the separation between church and state, we
are concerned that the safeguards included in the bill may be
too weak, and that the bill will pave the way for excessive
entanglement between government and religion. We are also
concerned that the new voucher authorizations in the bill pose
severe constitutional problems. These concerns demonstrate that
the bill may be unconstitutional under the Establishment
Clause.
Safeguards
We are particularly concerned that the most critical
Establishment Clause safeguard included in the legislation--a
beneficiary's right to a secular alternative to a faith-based
service--is an unfunded and unenforceable mandate. The
principal problem is that there is not a single dollar
appropriated to meet the requirement, which serves as the lynch
pin for H.R. 7, nor has there been any indication from the
Administration that they intend to fund this mandate. The
Majority's own witness, Professor Douglas Laycock acknowledged
that the government must ``really [make] available an alternate
provider . . . you have got to really do that or this program
is a fraud.'' \51\ Yet at the same hearing, the
Administration's own witness would not commit to fully funding
the alternative program. When asked point blank by Rep. Frank
whether for the charitable choice program to be fair and
justifiable there needs to be a substantively equal secular
alternative set of programs, Carl H. Esbeck, Senior Counsel at
the Department of Justice responded, ``I think in [an] earlier
answer I was showing you an example where that was not
necessary. So I guess the answer is no.'' \52\
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\51\ The Charitable Choice Act of 2001: Markup Before the House
Judiciary Committee, H. Doc. No. HJU179.000, p. 214 (June 28, 2001).
\52\ Id. at 67.
---------------------------------------------------------------------------
If the Federal Government will not find the resources to
meet the requirement of a secular alternative, it is unlikely
the financially strapped State and local governments will be
able to make up the difference. In this regard, the National
League of Cities has written: ``Local governments are already
hard-pressed to deliver much needed services, and they are
especially vulnerable to the impact of budget cuts in social
service programs. Without the financial support from the
Federal Government, it will be impossible for cities to satisfy
this provision of H.R. 7; thus leaving cities vulnerable to
litigation.'' \53\
---------------------------------------------------------------------------
\53\ Letter from Donald J. Borut, Exec. Dir., Nat'l League of
Cities to Hon. John Conyers, Jr., p. 2 (June 27, 2001) (on file with
the House Judiciary Committee).
---------------------------------------------------------------------------
The other key religious protections included in the bill--
the requirement that government funds may not be used for
``sectarian instruction, worship, or proselytization,'' and the
requirement that if the religious organization offers such
activity, it is to be ``voluntary'' and ``offered separate''
from the government funded program--are largely left to self
enforcement.\54\ Of course, we do not question the good faith
of our non-profit or religious organizations, but it does seem
that the Majority could offer stronger safeguards for this core
constitutional concern than self certifications and self
audits.
---------------------------------------------------------------------------
\54\ It is worth noting that the bill still does not contain the
most obvious safeguard with regard to separation of church and state--a
simple statement that a religious organization may not proselytize at
the same time and place as a government funded programs.
---------------------------------------------------------------------------
Particularly questionable is whether a sectarian religious
program offered in conjunction with a covered Federal program,
such as after school programs for young children, can ever be
truly ``voluntary'' to the children involved. We all know the
tremendous peer pressure impressionable children can be under,
and they can hardly be expected to be aware of their statutory
rights to object under H.R. 7, let alone willing to assert such
legal rights against a religious organization.\55\ A similar
concern exists for other categories of beneficiaries, such as
drug addicts. As the Association for Addiction Professionals
testified before the Senate Judiciary Committee, ``[t]he
patient presenting for addiction treatment is very vulnerable
to subtle and implied coercion. As other treatment options may
not exist in real time, the presenting patient may comply [with
the religious coercion] in order to continue to receive
services.'' \56\
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\55\ ``The bill would leave it up to the children in an after
school program to ask for a non-religious alternative. But experience
with `voluntary' school prayer demonstrates that peer pressure or other
factors may hinder children from exercising that right.'' See Mr.
Bush's ``Faith Based'' Agenda, N. Y. TIMES, July 8, 2001, at A10.
\56\ Statement by John L. Avery, Government Relations Director of
The Association for Addiction Professionals (NAADAC) before the
Committee on the Judiciary, U.S. Senate 107th Cong. (June 6, 2001).
---------------------------------------------------------------------------
The bill's other purported protection--the specification
that religious organizations receiving grants may not
discriminate against beneficiaries on the basis of their
religion--is also likely to be problematic in practice. One
obvious problem is that this protection is limited to religious
discrimination; it offers no protection against discrimination
on account of sex, pregnancy status, marital status, or sexual
orientation.\57\ The fact that the legislation includes a
savings clause stating that specified civil rights protections
are unaffected by the bill is of little import, since none of
the cited laws provide any protection with regard to these
categories of beneficiaries.\58\
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\57\ Reps. Frank and Baldwin attempted to offer an amendment to
prevent discrimination on any basis prohibited under applicable
Federal, State, or local laws, including sexual orientation.
\58\ Letter from Laura W. Murphy, Director, ACLU and Terri
Schroeder, Legislative Representative, ACLU, p. 11 (June 27, 2001) (on
file with the House Judiciary Committee) (``At first glance, the
paragraph may appear to provide significant protection to persons
suffering employment discrimination caused by federally-funded
religious organizations. However, a closer examination shows what
protections are missing. Specifically, the paragraph saves absolutely
no laws protecting persons against discrimination based on religion,
sex, pregnancy status, marital status, or sexual orientation in any
federally-funded program or activity.''). See also Statement by Wade
Henderson, supra note 32, at 5. (``None of the cited laws provide any
protection against employment discrimination based on religion, sex,
pregnancy status, marital status, or sexual orientation.'').
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Even the protection against religious discrimination
against beneficiaries is incomplete with regard to indirect
aid. The original version of the legislation required that for
indirect forms of disbursement religious organizations were
prohibited from discriminating based on religion in all
respects.\59\ The manager's amendment weakened the protection
to merely require that a religious organization cannot deny
admission based on religion.\60\ This means, for example,
pressure to convert can be applied once admission is granted.
Also, the protections that proselytization must be voluntary
and separately offered do not apply to indirect aid. Finally,
like the other religious safeguards applicable to
beneficiaries, this anti-discrimination protection is not
enforceable in court. In contrast to the provisions protecting
religious organizations against discrimination, which are
enforceable in court and allow recovery of attorney's fees,\61\
beneficiaries facing discrimination are given no such right.
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\59\ H.R. 7, section 201 adding proposed section 1994A(g)(2), 107th
Cong. (2001), as introduced. ``A religious organization providing
assistance through a voucher, certificate, or other form of indirect
disbursement under a program described in subsection (c)(4) shall not
discriminate, in carrying out the program, against an individual
described in subsection (f)(3) on the basis of religion, a religious
belief, or a refusal to hold a religious belief.''
\60\ Manager's amendment to H.R. 7, section 201 adding proposed
section 1994A(h)(2), 107th Cong. (2001) provides, ``A religious
organization providing assistance through a voucher, certificate, or
other form of indirect assistance under a program described in
subsection (c)(4) shall not deny an individual described in subsection
(f)(3) admission into such program on the basis of religion, a
religious belief, or refusal to hold a religious belief.'' (emphasis
added).
\61\ The proposed section 1994A(n) authorizes the bringing of a
civil action pursuant to title 43, section 1979 of the Revised Statutes
of the United States, the codified version of what is commonly known as
section 1983 of the United States Code. title 42, section 1988 allows
for the awarding of attorney's fees in a 1979 action.
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Entanglement
We are also concerned that by unleashing the process
contemplated by H.R. 7, Congress will be inviting excessive
entanglement between the church and state, particularly with
regard to raw political calculations. The last several months
have already unleashed a flurry of such activity, as the White
House has used the full weight of its office to curry political
support from impacted religious groups and elected
representatives.
Perhaps the most telling instance of the dangers of such
entanglement can be seen in the discussed quid pro quo between
the Bush White House and the Salvation Army relating to H.R.
7.\62\ On July 10, 2001, the Washington Post, citing the text
of a confidential Salvation Army document, stated that the
Salvation Army had received a ``firm commitment'' from the
White House to issue a regulation protecting such charities
from State and city laws and regulations against discrimination
in employment on the basis of sexual orientation, or requiring
domestic partner benefits.
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\62\ See infra note 29.
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The Salvation Army document states: ``We suggested the
amendment to OMB Circular #A-102 to staff at the White House
Office of Faith-Based and Community Initiatives as one
potential solution.'' The document goes on to say that White
House officials ``first want to move the charitable choice
provisions in the legislation and use the political momentum of
this effort to push forward religious exemptions to domestic
partnership benefit ordinances and municipal contract clauses
that protect against any form of sexual orientation
discrimination.'' The document goes on to observe, ``The
Salvation Army's role will be a surprise to many in the media''
and urges efforts to ``minimize the possibility of any `leak'
to the media.''
Subsequently, on July 12, 2001, the Washington Post
reported that senior White House officials, including Karl
Rove, President Bush's senior advisor, were involved in
discussions with the Salvation Army; contrary to the Bush
Administration's earlier position that senior officials were
not involved.
It is difficult to conceive of a more troubling fact
pattern from the perspective of separation of church and state.
We have a large religious organization--that receives more than
$300 million in Federal funds per year--allegedly entering into
a secret deal by which the White House agrees to use taxpayer
funds and resources to weaken civil rights laws if the
religious organization supports the White House's legislative
agenda.
Incidents such as this clearly raise the specter that
religion may see its role as an independent voice of compassion
in our society diminished. This was the very concern
articulated by Rev. J. Brent Walker of the Baptist Joint
Committee, when he stated, ``[r]eligion has historically stood
outside of government's control serving as a constant critic of
government. Accepting government funding creates a dependency
on government that will have the effect of silencing the
prophetic witness. How can a religion raise a prophet's fist
against government when it has the other hand open for a
handout? It simply can't do both at the same time.'' \63\
---------------------------------------------------------------------------
\63\ Brent J. Walker, What is Charitable Choice, Baptist Joint
Committee Information Sheet on Charitable Choice (Spring 2001) (on file
with the House Judiciary Committee).
---------------------------------------------------------------------------
An equally salient concern is that in the onslaught of
lobbying for government grants by religious organizations,
small and minority religions may be left underfunded and under
appreciated. This of course would send a very dangerous message
about which religions are worthy of government support and
which are not. As Rabbi David Saperstein, the Director of the
Religious Action Center of Reform Judaism testified: ``The
prospect of intense competition for limited funding; the
politicizing of church affairs to obtain funds; the impact on
those made to feel they are outsiders when they fail to obtain
the funds--this leads to the very kind of sectarian competition
and divisiveness that have plagued so many other nations and
which we have been spared because of the separation of church
and state.'' \64\
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\64\ Reform Action Center of Reform Judaism, ``Rabbi Saperstein
Testifies Before Congress in Opposition to Charitable Choice,'' Press
Release (June 7, 2001).
---------------------------------------------------------------------------
Early activities and statements by the Administration
already provide cause for concern in this area. For example,
when Stephen Goldsmith, a White House special adviser and a
principal architect of the faith based plan, conducted a
briefing in Augusta, Georgia in February, only ``churches''
were sent invitations.\65\ Neither Jewish congregations nor
secular nonprofits were invited. Similarly, when the White
House hosted a meeting with Muslim groups last month, Muslim
leaders walked out after an intern from David Bonior's office
attending the meeting with the group was mistakenly removed by
the Secret Service.\66\
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\65\ OMB Watch, ``Analysis of Bush administration's Charitable
Choice Initiatives,'' p. 4 (Apr. 23, 2001).
\66\ Caryle Murphy, Muslim Leaders Leave White House Briefing;
Removal of Intern Leads to Walkout, WASHINGTON POST, June 29, 2001, at
A35.
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It is also noteworthy that in an interview on Face the
Nation, when CBS correspondent Bob Schieffer asked Mr.
Goldsmith whether the Nation of Islam, which runs successful
inmate rehabilitation programs, would be eligible to apply for
a grant under charitable choice, Mr. Goldsmith answered, ``I
would say, if [the Nation of Islam] preach[es] hate, if they
can't perform the terms of the contract, they shouldn't be
allowed to apply.'' Obviously, the last thing we want to do is
put the Administration in a position of deciding which faiths
are acceptable and which are not under their charitable choice
plan. Yet when Rep. Scott offered an amendment to insure that
discrimination between religions was not tolerated, and that
any funding decisions were purely merit based, it was rejected
by the Majority.
Voucher Expansion and Discrimination
Another serious concern with regard to the manager's
amendment is that it provides an unprecedented new
authorization of the use of vouchers and other indirect aid
available for use by religious organizations. It also permits
religious organizations to religiously discriminate in such
voucherized programs, and to avoid the safeguards preventing
the use of such funds for sectarian instruction, worship, or
proselytization as well as the ``voluntary and offered''
separate requirement. These changes, effectuated in the fine
print of the manager's amendment, and inserted without the
benefit of any public hearings or discussion, constitute a
massive expansion of the use of vouchers, and create major new
loopholes in the bill's religious safeguards.
The authorization of the new voucher program appears in
proposed new subsection (l). This language was not contained in
the original version of H.R. 7, nor has it appeared in any
previous charitable choice law. It would grant the
Administration the ability to unilaterally convert more than
$47 billion in social service programs into vouchers.
Amazingly, this wholesale conversion in the nature of these
programs could occur without any action by Congress, or even
any regulatory action subject to outside comment. The action
would even include education programs, despite the fact that
such measures have created considerable legal and policy
controversy in other contexts. In one fell swoop, this change
could dramatically alter the nature of the nation's efforts to
fight hunger, homelessness, crime, juvenile delinquency, and
job training in a manner never contemplated or considered by
Congress. At a minimum, such a wholesale change deserves more
consideration than comes from being added in the middle of the
night to a manager's amendment primarily touted for its other
changes.
Our concerns with the new voucher program extend beyond its
authorization. Tucked away in the manager's amendment is
another clause which permits religious organizations
participating in these ``voucherized'' programs to discriminate
against beneficiaries on account of their religion. This is
because, as noted above, subsection (h) of the Committee-
reported version of the bill deletes language from the original
bill generally prohibiting religious discrimination against
beneficiaries by religious organizations, and instead, merely
states they ``shall not deny . . . admission'' on the basis of
religion. Again, this language did not appear in the original
version of H.R. 7 or any other charitable choice law.
This means that religious groups could use their social
service programs in an effort to convert non-believers to their
faith. Given the controversy which ensued when the ``Teen
Challenge'' group admitted in a recent congressional hearing
that they seek to convert Jewish persons in their programs to
make them ``completed Jews,'' we are surprised that language
allowing such proselytization in these ``voucherized programs''
would be added to the manager's amendment.
Equally objectionable is the fact that such proselytization
could occur with Federal funds provided under the bill. This is
because, as noted earlier, the bill's safeguards do not apply
to ``voucherized programs.'' A careful reading of subsection
(j) indicates that the bill's prohibitions on sectarian
instruction, worship, or proselytization with Federal funds and
the requirement that any religious activity be ``voluntary''
and ``offered separate'' only applies with programs receiving
direct Federal funds, not indirect aid.
Constitutional Concerns
We also continue to be concerned that the Judiciary-
reported version of the bill may be found unconstitutional.
Contrary to the Majority's assertions, we need to do far more
than consider whether the legislation is ``neutral,'' as
emphasized by the plurality opinion in Mitchell v. Helms. \67\
The critical opinion was the concurring opinion written by
Justice O'Connor and joined by Justice Breyer which represents
the balance of power on the Court in terms of establishment
clause doctrine.\68\
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\67\ Mitchell v. Helms, 530 US 793, 809 (2000).
\68\ The Justices in Mitchell v. Helms, 530 US 793 (2000) joined in
three different opinions. Justice Thomas wrote the plurality opinion,
joined by Chief Justice Rehnquist and Justices Scalia and Kennedy. Id.,
at 801. Justice Souter, joined by Justices Stevens and Ginsburg, wrote
a dissent. Id. at 868. Justice O'Connor, joined by Justice Breyer,
wrote the determinative opinion in the case and the one that provides
the most authoritative guidance on the current meaning of the
establishment clause. Id. at 836.
---------------------------------------------------------------------------
A reading of Justice O'Connor's concurrence makes clear
that she specifically rejected the plurality's single-minded
and exclusive focus on neutrality and disputed the plurality's
contention that direct government aid to a pervasively
sectarian institution is constitutionally acceptable: ``we have
never held that a government-aid program passes constitutional
muster solely because of the neutral criteria it employs as a
basis for distributing aid . . . I also disagree with the
plurality's conclusion that actual diversion of government aid
to religious indoctrination is consistent with the
Establishment Clause.'' \69\
---------------------------------------------------------------------------
\69\ Mitchell v. Helms, 530 US 793, 840 (O'Connor, J., concurring).
---------------------------------------------------------------------------
In Justice O'Connor's view, a statute raises sensitive
establishment clause concerns when it involves direct funding
of religion, as H.R. 7 clearly does: ``In terms of public
perception, a government program of direct aid to religious
schools based on number of students attending each school
differs meaningfully from the government distributing aid
directly to individual students who, in turn, decide to use the
aid at the same religious schools . . . This Court has
recognized special Establishment Clause dangers where the
government makes direct money grants to sectarian
institutions.'' \70\
---------------------------------------------------------------------------
\70\ Id. at 842, 843. Even Justice Thomas, writing for the four
justice plurality admitted that: ``Of course, we have seen `special
Establishment Clause dangers', when money is given to religious schools
or entities directly rather than . . . indirectly. But direct payments
of money are not at issue in this case. . . .'' (citations omitted),
530 U.S. at 818-819 (Thomas, J., plurality opinion).
---------------------------------------------------------------------------
In cases such as this, Justice O'Connor will look at a
range of factors, including, notably, the constitutional
safeguards present, and the degree of entanglement between
government and religion. In Justice O'Connor's own words, ``the
program [should] include adequate safeguards'' \71\ and the
funds should not ``create an excessive entanglement between
government and religion.'' \72\
---------------------------------------------------------------------------
\71\ Id. at 867.
\72\ Id. at 845.
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Under these tests, there is a very real concern that H.R. 7
would fail to pass constitutional muster. As previously noted,
the bill's so-called ``safeguards'' include numerous loopholes
and are largely left to the religious organization to enforce.
This is in stark contrast to the safeguards included in the
school aid program upheld in Mitchell, where the State was
given the power to cut off aid upon any violation, and
conducted numerous monitoring visits and random reviews of the
religious school to insure compliance. Also, as noted above,
significant government entanglement with religion is not only
inevitable, it has already begun to occur. We are also gravely
concerned about the bill's new voucher provisions. The most
serious problem is that these provisions allow pervasively
sectarian organizations to use Federal money for sectarian
purposes, including attempting to convert beneficiaries. Even
if the funding is provided indirectly, it seems likely that any
bill allowing religious organizations to proselytize in
federally funded programs would be suspect. Collectively, these
infirmities raise serious constitutional problems with regard
to H.R. 7.
III. H.R. 7 Does not Authorize a Single Additional Dollar to Fund a
Covered Social Welfare Program
It is difficult to support legislation which purports to
provide an enhanced ability to fight poverty when the
legislation itself does not authorize a single dollar in
additional funds for charitable choice programs. This fact,
when combined with the severe cuts in the Administration's
budget for social services will place severe constraints on the
ultimate viability of charitable choice programs.
It is indeed ironic that at the same time the
Administration is touting the benefit of making the various
programs set forth in H.R. 7 eligible for charitable choice, it
has elected to slash the budgets of those very programs.\73\
For example, with regard to local crime prevention, the Bush
budget cuts funds by $1 billion. This includes cutting funds
for juvenile delinquency programs, such as gang-free schools
and communities, incentive grants for local delinquency
prevention, drug reduction program, and victims of child abuse.
---------------------------------------------------------------------------
\73\ Staff of House Comm. On The Budget, 107th Cong., Bush Budget
Cuts Priority Programs (April 30, 2001) (on file with House Judiciary
Committee); Materials provided by Senate Budget Committee (on file with
House Judiciary Committee).
---------------------------------------------------------------------------
The Bush budget treats public housing needs--also covered
by H.R. 7--no better, cutting funds by more than $1 billion.
This includes the termination of the $309 million Public
Housing Drug Elimination Grant, and cutting the Public Housing
Capital Fund by $700 million. The Public Housing Drug
Elimination Grant Program is used for anti-crime and anti-drug
law enforcement and security activities in public housing. The
Public Housing Capital Fund provides critical building repairs
in public housing.
Job training is cut by more than $500 million under the
Administration's budget. This will translate into vastly
reduced job training through the Workforce Investment Act for
low income workers, dislocated workers, and other unemployed or
underemployed individuals. The Older Americans Act--also
covered by H.R. 7--which provides funds for elderly nutrition
programs, home care, and ombudsman services for residents of
long-term care facilities would also be cut by more than $5
million under the Bush budget.
We shouldn't be surprised that the Administration's budget
treats the programs covered under H.R. 7 so uncharitably, when
it also cuts the programs subject to previously enacted
charitable choice laws. For example, with regard to Temporary
Assistance for Needy Families (TANF), the subject of the 1996
Welfare legislation, the Bush budget eliminates $319 million in
supplemental grants as well as $2 billion in contingency fund
grants. The Administration would also reduce the Community
Development Block Grant program, the subject of the Community
Services Block Grant law, by more than $500 million.
IV. H.R. 7 unjustifiably protects business entities from negligent acts
and unnecessarily preempts traditional State law
Finally, we object to the liability provisions included in
sec. 104 of the bill. First, they were included without the
benefit of support from a single witness, or any statement of
justification or support. The provisions were so sloppily and
hastily pasted together, that the original bill, and the
manager's amendment, included provisions bearing no
relationship whatsoever to non-profits.\74\ The final version
still contains very tenuous liability relief--for example, the
exemption applies to the use of facilities and motor vehicles
or aircrafts, regardless of whether a nonprofit pays for its
use.\75\
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\74\ Section 104(B)(4) of H.R. 7, as introduced, and the manager's
amendment exempted business entities from civil liability relating to
any injury to or death of an individual occurring at a facility of the
business entity, if the injury or death occurred during a tour of the
facility in an area of the facility that was not otherwise accessible
to the public.
\75\ H.R. 7 sections 104(B)(2) and 104(B)(3), 107th Cong. (2001).
---------------------------------------------------------------------------
We are also concerned that under the bill even if donated
equipment injures or kills, the corporation would be absolved
of any duty it currently owes to the charity that received the
items and to the injured person who suffered because of the
business's negligent act. Despite the fact that the
corporations are in the best position to determine if the
donated equipment is properly maintained and reasonably safe,
this bill shifts the costs away from the corporation and onto
the charity. If the charity is also shielded from liability,
under State law, or if it is without sufficient financial
resources, the injured person would have to shoulder the loss
completely.
To the extent there is any problem with corporate liability
for charitable in-kind donations, we would suggest that the
States are fully capable of passing their own laws protecting
volunteers from personal civil liability. Moreover, by
mandating these provisions on the States, we may invite legal
challenges to Congressional authority to legislate in this
area, particularly under the Supreme Court's decision in United
States v. Lopez and its progeny.\76\
---------------------------------------------------------------------------
\76\ 514 S.Ct. 549 (1995). In Lopez, The Court held that the Gun-
Free School Zones Act of 1990, which made illegal the knowing
possession of a gun in a school zone, was beyond Congress' Commerce
Clause authority. Congress acted to remedy the constitutional infirmity
in the Gun-Free School Zones law by limiting it to firearms that
``ha[ve] moved in or that otherwise affects interstate or foreign
commerce.'' See 18 U.S.C. Sec. 922q.
---------------------------------------------------------------------------
Proponents' arguments that the legislation protects State
prerogatives because it allows the States to opt-out \77\ miss
the mark. It is an odd formulation of federalism which grants
all power to Congress unless the States affirmatively act to
protect their interests. As proponents well know, it is no easy
feat to obtain approval in a state house and senate and obtain
the governor's signature. Moreover, many States meet on a
biennial basis and could not even consider electing to opt-out
for several years.
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\77\ Manager's amendment to H.R. 7, section 104(e), 107th Cong.
(2001).
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Conclusion
We believe that the government does nothing to respond to
America's social problems by sanctioning government-funded
discrimination. We also do nothing to strengthen our religious
freedoms by breaking down the separation between church and
state.
Rather than propose legislation which opens up even greater
divisions in our society, as H.R. 7 does, we urge the
Administration and the Majority to work with us in a bipartisan
basis in expanding the role of religion in a manner which
protects both equal protection and freedom of religion.
John Conyers, Jr.
Barney Frank.
Jerrold Nadler.
Robert C. Scott.
Melvin L. Watt.
Zoe Lofgren.
Sheila Jackson Lee.
Maxine Waters.
William D. Delahunt.
Robert Wexler.
Tammy Baldwin.
Adam B. Schiff.