Earlier this year, I joined with Senator Hatch and Senators Biden, DeWine, and Thurmond to introduce S.304, the Drug Abuse Education, Prevention, and Treatment Act of 2001, which Senator Feinstein has since joined as a cosponsor. This bill takes a comprehensive approach to the drug problems that most affect our communities, with provisions designed to reduce illegal drug use and to provide appropriate drug education, prevention, and treatment programs.
When Senator Hatch and I introduced S.304, I stated my reservations to the inclusion in the bill of a so-called "charitable choice" provision. Today’s hearing marks the first time that this Committee has held a discussion of the wide-ranging concerns posed by such provisions. I welcome this opportunity to discuss the issue today not only as it relates to S.304, but also to provisions included in bills in prior years, and to provisions in the Administration’s Faith-Based Initiative.
At the outset, we need to have a clear understanding of the current state of affairs in this area. Long before Congress passed the first charitable choice provision in 1996, the Federal Government and the States had established strong cooperative relationships with a broad range of faith-based charities. Indeed, many faith-based charities receive millions or even billions of dollars a year in government funds. We owe a debt of gratitude to groups like Catholic Charities and the United Jewish Communities, among others, that offer critically needed social services through publicly-funded and professionally managed programs. Given the success of these programs, we ask why we need extensive expansion of government involvement in faith-based charities. What exactly is the problem that we are trying to fix? I hope that our witnesses will speak to this basic question.
We should also use this hearing to address some of the serious legal and policy concerns that have been raised about proposed expansions of charitable choice by religious leaders, civil rights leaders, and ordinary Americans across the country. I would like to address five of those concerns in my statement today.
First, many are concerned about the impact of charitable choice on religion. There is an old saying about a certain road that is paved with good intentions. Charitable choice may be well intentioned, but I have grave concerns about where it may lead us.
I would like to submit for the record a letter signed by 969 religious leaders from across the theological spectrum. These religious leaders say that charitable choice poses a danger to religion because "[t]he flow of government dollars and the accountability for how those funds are used will inevitably undermine the independence and integrity of houses of worship."
That is the view of nearly 1,000 religious leaders. It also happens to be the position of the Mormon Church. The Mormon Church recently announced that it will not seek government funding for its charitable work because, in effect, it does not want to the government telling it what it can or cannot do.
When so many of our religious leaders reject a proposal that is purportedly designed to help religious organizations, we in Congress should proceed with great care.
Americans do not want the government meddling with their religion. According to a recent report by the Pew Forum, most Americans – 68 percent – worry that faith-based initiatives will lead to inappropriate government interference with religious organizations.
The CATO Institute writes that "Government dollars come with strings attached and raise serious questions about the separation of church and state. Charities that accept government funds could find themselves overwhelmed with paperwork and subject to a host of federal regulations. . . . Officials of faith-based charities may end up spending more time reading the Federal Register than the Bible."
Expansion of charitable choice could harm religion in other ways. We should consider how government funding of religious charities will affect the spirit of giving that religious charities currently inspire. Some ministers predict that an infusion of government funding will result in a decrease of volunteerism within their congregations, because church-goers will get the impression that their small contributions of time and money are no longer needed. This would work against the stated goals of charitable choice.
Charitable organizations have already suffered one financial blow this year, in the form of the estate tax repeal. According to the Treasury Department, this aspect of the President’s $1.35 trillion tax legislation will reduce charitable giving by as much as $6 billion a year. That means less money will be available for the sorts of social programs that the faith-based organizations currently operate.
At the same time, the Washington Post reported last week that charities have questioned President Bush for dropping from the tax cut package that passed the Congress his proposal to allow those who do not itemize their tax returns to take a charitable tax deduction. That deduction would have increased charitable giving by $15 billion a year, according to a PriceWaterhouseCoopers study.
Does the Administration intend for direct Federal Government funding to replace the over $20 billion that the President’s tax plan is taking away from faith-based organizations? That is another of the questions that needs to be answered.
Second, many have raised questions about how current charitable choice proposals will affect State licensing and certification requirements.
In 1997, then-Governor Bush sponsored laws in Texas that exempted faith-based drug treatment and child care centers from State health and safety regulations. Drug counselors at such institutions need not obtain licenses or undergo criminal background checks. Religious institutions that operate child care or troubled youth programs can choose to be overseen by a Christian child care agency rather than a State regulator.
We are starting to see the results of the Texas experiment. At one center for troubled youth, a girl was bound with rope and duct tape. At another, police arrested the supervisor for unlawful restraint after he allegedly roped two children together and made them dig in a sewage pit. These cases are very troubling.
Some social service providers require specialized training to address the medical needs of their patients. Take for example the drug treatment programs established by S.304. Drug addiction is a medical disease, with established medical treatments. Spiritual instruction alone cannot adequately address the medical needs of the addicted person. We need to ensure that faith-based organizations that receive federal drug treatment funds are held to the same professional standards as their secular counterparts.
It is often said that religious programs are better than secular programs in delivering social services. However, what little empirical evidence that there is shows no discernable difference in effectiveness. I would like to submit written testimony by two researchers, Mark Chaves of the University of Arizona and David Reingold of Indiana University, who have conducted scientific surveys of religious organizations engaged in the provision of social services. Their findings suggest that many assertions about the benefits of faith-based programs are not proven.
Let me be clear – I appreciate that faith and the strong arms of a church or temple can help sustain a person in health, and I wholly support each person who believes in seeking such help. But having the Federal Government fund this help is another matter.
Third, charitable choice raises several constitutional questions. Does the Establishment Clause permit public money to flow directly to churches, synagogues, mosques, and other houses of worship? In the past, the Supreme Court has considered direct financial aid of the sort contemplated by charitable choice to be unconstitutional, because the government monitoring needed to prevent the use of public funds for proselytization creates excessive entanglement between government and religion. While the Rehnquist Court has been distancing itself from this body of precedent, we must be mindful of the constitutional pitfalls of an overly aggressive use of religious organizations to reform government social service functions.
Would charitable choice result in public funding for religious activities? In Texas, an employment program financed under charitable choice has been accused of proselytizing. The program bought Bibles for students, required them to study Scripture, and taught them "to find employment through a relationship with Jesus Christ." Many of the students claimed that they had been pressured by the program to join a church or change their beliefs.
The Reverend John Castellani, executive director of Teen Challenge, testified before a House subcommittee last month on charitable choice. Teen Challenge offers a year-long residential drug treatment program which, according to its web site, "challenge[s] the residents to embrace the Christian faith." During his testimony, Castellani was asked if his program would accept participants from other faiths. He responded that it accepts anyone, including Jews, some of whom return to Judaism, and some of whom become "completed Jews," meaning they have converted to Christianity. This sort of response has fueled concern that charitable choice will result in government-funded proselytizing.
The charitable choice provisions that Congress has enacted, and those under consideration, say that "no funds" may be expended for proselytization. But these provisions appear to allow religious organizations to engage in religious activities, including proselytization, in carrying out their programs. Thus, a drug addict who seeks help through a publicly-funded treatment program could find himself being pressured to join the church that runs the program. If so, then as the Congressional Research Service has concluded, charitable choice "push[es] the envelope" of existing judicial interpretations of the Establishment Clause and invites years of costly litigation.
Beyond this, religious leaders have acknowledged that any government dollars they receive under through charitable choice will simply free up their privately-raised dollars for religious and other activities. This raises the further question whether charitable choice is simply a sophisticated shell game, which would enable an end run around the Constitution while doing little to help Americans in need. Does the President propose to increase spending on social programs, or just create more competition for the same dollars? If we are serious about wanting to improve social services in this country, we need to commit more resources to the cause. That is what the Hatch-Leahy legislation is about: committing more money and important resources to combat drug abuse.
The constitutional issues posed by charitable choice are substantial, with substantial consequences for the relationship between church and state in America. I will submit for the record the written testimony of Dr. Derek Davis of Baylor University, a leading expert on the religion clauses, who examines these issues at greater length.
Fourth, charitable choice raises serious questions about our nation’s commitment to equal protection under the law. The charitable choice provisions now before Congress would give government-funded religious organizations an unprecedented exemption from the federal civil rights laws. Unlike other recipients of taxpayer dollars, faith-based social service providers would be entitled to discriminate on the basis of religion when hiring and firing staff.
What does it mean to discriminate "on the basis of religion"? The New York Times ran a story in April about a woman named Alicia Pedreira. She worked as a therapist at the Kentucky Baptist Homes for Children, which receives State funds. She was fired because the religious organization said that employing a gay person was contrary to the organization’s "core values." Is this discrimination on the basis of religion, or is religion being used as a pretext to discriminate against homosexuals? By allowing discrimination on the basis of religion, we may open the door to other forms of discrimination, including race. As the Times noted, "In theory, an organization like Bob Jones University could receive public funds to hire employees while forbidding them to engage in interracial dating."
Religion can certainly play a role in our society without undermining our anti-discrimination laws. We learned that last year, when we considered legislation to ensure the highest level of legal protection for the free exercise of religion. Members of this Committee, working together on a bipartisan basis, were able to craft a bill that protected religious liberty without sacrificing civil rights. I supported that legislation, and it passed Congress with the blessing of religious leaders and civil rights leaders alike. That experience should serve as a guide as we consider charitable choice.
Finally, charitable choice threatens to overwhelm State and local governments with a wave of litigation. The charitable choice provision in S.304 creates a civil cause of action against State and local governments and their officials by religious organizations that claim they were denied funding opportunities because of their religious character. At the same time, State and local governments that chose to fund religious organizations would run the risk of being sued for Establishment Clause violations. This practically guarantees that city, county and State agencies will be sued no matter what they do, whether they decide to fund religious groups or not. We should also consider whether charitable choice, by authorizing private suits against States, runs afoul of the Supreme Court’s new "vision" of federalism and state sovereign immunity.
I hope that in today’s hearing, we can start to identify the problems that the faith-based initiative is trying to solve. If problems do exist, we should work to address them without running roughshod over the Constitution or our commitment to civil rights.
Most importantly, I hope this hearing allows us to move forward on S.304 and pass this important drug treatment legislation through this Committee and through the Senate. This bill can do a world of good, and we should act on it promptly.
