Thank you for the opportunity to testify on the legal issues surrounding charitable choice. This statement is submitted in my personal capacity as a scholar. I hold the Alice McKean Young Regents Chair in Law at The University of Texas at Austin, but of course The University takes no position on any issue before the Committee.
I. Separation of Church and State.
The debate over charitable choice has been cast as a debate over separation of church and state. I think the usual formulation of the charitable choice debate is misleading, for reasons I will explain. But let me begin by making clear my own starting premises.
I support the separation of church and state. The religious choices and commitments of the American people should be as separated as possible from the influence of government. The religious choices and commitments of believers and of non-believers should be equally protected, and equally insulated from government influence.
Church-state questions arise in three great clusters of issues: government regulation, government speech, and government money. With respect to government regulation, I have often testified to this committee about the need to separate religious practices from government regulation. With respect to government speech, most recently I represented the parents who objected to Texas high schools opening their football games with prayer. Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000). In Texas, that is a more radically separationist position than anyone outside Texas can fully appreciate.
With respect to government money, I long accepted the widespread fallacy that the ultimate goal is to separate religion from government money. But I have gradually come to realize that that is a means, not an end. The goal is to separate private religious choices and commitments from government influence, including the powerfully distorting influence that government can buy with its money. Government should minimize its influence over the religious choices and commitments of both the providers and the beneficiaries of government-funded social services. That goal is difficult to achieve, but charitable choice is a step in the right direction.
Think of government setting out to buy secular goods and services in the marketplace. It wants wine for the State Department, or sausage for the Army. Or it wants medical care for its citizens, or child care, or drug treatment. Government spends a lot of money on these things.
When it purchases secular goods or services, government has three choices with respect to religion:
1. Government can prefer religious providers.
2. Government can prefer secular providers.
3. Government can buy without regard to religion (e.g., from all qualified providers, or from the low bidder, or on some other neutral criterion).
Which rule better separates the religious choices and commitments of the American people from the influence of government? Buying only from the religious, or only from the secular, creates powerful incentives to change religious behavior. Rule 1 says, "Get religion and we'll do business with you." Rule 2 says, "Secularize yourself, and we'll do business with you." Some potential providers cannot or will not change; under the first two rules, they will be penalized for their religious or secular commitments. Other potential providers are more pliable; government will coerce them into changing their religious behavior.
It is actually Rule 3, buying without regard to religion, that minimizes government's influence on religious choices and commitments. If government buys without regard to religion, no one has to change their religious behavior to do business with the government. That is the key concept of charitable choice. It is a good concept. Despite the conventional wisdom of many separationists, funding everyone equally separates private religious choice from government influence more effectively than funding only secular providers.
So what does the Establishment Clause mean under this view? It means a lot. Government cannot sponsor, endorse, or pay for religious beliefs or religious functions. It can buy from religious providers, but it can buy only secular goods or services. The essential safeguards of the establishment clause are that government must get full secular value for its money, and that no one may be coerced, steered, or encouraged towards or away from a religious practice or a religious provider of services. If a religious provider wants to add religious services in conjunction with the government-funded secular services, the religious provider must pay for the religious services itself, and no beneficiary of the government-funded program can be required to participate.
Charitable choice would be an important step in the right direction. Even so, there are problems of implementation, and many ways to get this wrong. And there are many misconceptions in the current debate.
II. What Is Old.
Throughout most of our nation's history, government has paid religious organizations to deliver social services. The founders did it without apparent controversy; even Thomas Jefferson sent missionaries to run schools for Indians. Current programs, not under the rubric of charitable choice, spend vast sums through religious charities.
You will likely hear that charitable choice flatly violates the original understanding of the Establishment Clause. That claim is not true; it conflates two issues that the founders treated separately. I have studied that history at length, and I have written two separationist articles, refuting overbroad historical claims of those who want more government support for religion. Douglas Laycock, "Nonpreferential" Aid to Religion: A False Claim About Original Intent, 27 Wm. & Mary L. Rev. 875 (1986); Douglas Laycock, "Noncoercive" Support for Religion: Another False Claim About the Establishment Clause, 26 Val. U.L. Rev. 37 (1992). There is simply no doubt that the founders squarely rejected financial support for churches, even if that support were even-handed and nonpreferential.
But the issue in the 1780s was the funding of the religious functions of churches - the salaries of clergy and the building and maintenance of places of worship. Funding education or social services was simply not an issue in their time. The modern question is whether government can pay religious and secular providers even-handedly to deliver secular services. The founders had nothing to say about that issue.
The modern issue first arose in the nineteenth-century battle over schools. Protestants controlled the public schools, conducted Protestant religious exercises and taught Christianity in ways acceptable to Protestants. Catholics objected and sought funding for their own schools. Protestants were more numerous, and they won the fight. They said that their own religious exercises in the public schools were nonsectarian, and therefore constitutionally unobjectionable, but that Catholic schools were sectarian, and that funding those schools even for math and reading would be like funding the church itself. The Supreme Court has rejected the first half of this remarkable theory; it now prohibits religious exercises in the public schools. The second half -- that funding religious schools is like funding churches -- still affects Supreme Court doctrine in the school cases, but to an ever declining extent. This doctrine is not traceable to the founders or to the First Amendment. It originates in the Protestant position in the nineteenth-century school wars, and the nineteenth-century Protestants conspicuously failed in their effort to write this doctrine explicitly into the Constitution.
The Protestant hostility to funding religious schools never extended to funding religious social services -- probably for the simple reason that many Protestants provided social services but until recently, few Protestants ran schools. Whatever the reasons, funding of religious social services has been remarkably uncontroversial. We have had more than a century of bitter political and legal battles over funding religious schools, but until now, almost no conflict over funding religious social services.
I know of only two Supreme Court cases. Bradfield v. Roberts, 175 U.S. 291 (1899), upheld a contract in which Congress paid for a new building at a religious hospital and paid the hospital to care for indigent patients. Bowen v. Kendrick, 487 U.S. 589 (1988), upheld the Adolescent Family Life Act, under which the government contracted with many providers, including religious ones, to provide counseling and services related to adolescent sexuality and pregnancy. The Court noted "the long history of cooperation and interdependency between governments and charitable or religious organizations." Id. at 609.
So we have a long and largely uncontroversial history of government funding social services through religious providers. That is what charitable choice does, yet there is suddenly a huge controversy. Why? What is new about charitable choice? Three things so far as I can tell: protection against discrimination, deregulation of religious providers, and protection of program beneficiaries.
III. What Is New.
A. Ending Government Discrimination.
Under most of our existing and historic programs, contracting with a religious provider is discretionary with the executive. Some bureaucrats prefer to deal with religious organizations; some prefer to avoid them. Some bureaucrats may prefer certain religions and avoid others. There has generally been no statutory obligation of equal treatment. Any constitutional obligation of equal treatment is little known and undeveloped. Bureaucrats have felt free to discriminate, and they have done so. Opinion polls show that much of the public wants to discriminate openly and flagrantly, funding services from churches they admire, and refusing to fund services from churches they do not admire.
Charitable choice prohibits discrimination against religious providers. This is a step forward for religious liberty. It tells the executive that it cannot use its control of government spending to influence or penalize religious choices and commitments; it must instead try to minimize its influence on those choices and commitments. It would be even better to prohibit all discrimination on the basis of religion -- to equally prohibit discrimination against secular providers, against religious providers, or among religious providers of different faiths.
B. Deregulating Providers.
Charitable choice proposals deregulate the religious providers. They state that religious providers need not secularize themselves to be eligible. These provisions protect religious liberty and enhance separation of church and state.
It has been common for religious providers to create a separate not-for-profit corporation to contract with the government. I am not an expert on the details of social service programs; I don't know how often such a requirement appears in statutes, how often it is imposed by the executive, or how often it is just the common practice and only assumed to be a requirement. But this tradition is a centerpiece of the opposition to charitable choice. Opponents say government can't pay the church to feed the homeless, but that the church can create a wholly-owned subsidiary or affiliate corporation, and government can pay this church affiliate to feed the homeless.
This is a formalistic distinction that does nothing to protect religious liberty. Corporate affiliates exist in filing cabinets and the minds of lawyers; they may be wholly intertwined operationally. Either the church or its affiliate may respect or abuse the religious liberty of the clients it serves under the government-funded program. I am concerned about the actual operation of the program, not about how many corporations have been formed.
There is some support in the cases for this notion that two corporations matter -- but not much. Bradfield v. Roberts, the 1899 opinion upholding government money to a religious hospital, is written on the ground that the hospital is not the church, but merely a corporation controlled by the church. This has always struck me as classic nineteenth-century formalism, but at any rate, the opinion does not create a requirement of separate incorporation. It simply decides the case before it, in which separate incorporation was one of the facts.
In the cases on religious schools, the Court has created a category of institutions it calls "pervasively sectarian." Even at the height of restrictions on aid to religious schools, some forms of aid could go to pervasively sectarian institutions, but aid to those institutions was more tightly restricted than aid to other religious institutions that were not pervasively sectarian. This doctrine is said to support the requirement of two corporations; opponents of charitable choice presume that the church itself is pervasively sectarian, but that its affiliate may not be. The presumption is fallacious; a church might operationally separate its delivery of social services from its purely religious functions, whether or not it separately incorporates them, and the separately incorporated affiliate might combine its religious and secular work.
With respect to social services, the Court reserved the question of pervasively sectarian providers in Bowen v. Kendrick. See 487 U.S. at 611, following cases which it characterized as having "left open the consequences which would ensue if they allowed federal aid to go to institutions that were in fact pervasively sectarian." More recently, four justices in a school case repudiated the whole concept of pervasively sectarian, correctly noting that the Court had steadily reduced its reliance on the concept, that the concept had originated as a code word for Catholic, and that it had grown directly out of virulent nineteenth-century anti-Catholicism. Mitchell v. Helms, 530 U.S. 793, 828-29 (2000) (plurality opinion). Two more Justices, concurring, did not join in the concept's overt repudiation, but neither did they rely on it. Id. at 836-67 (O'Connor, J., concurring). It seems quite unlikely that the distinction between pervasively sectarian institutions and other religious institutions will be revived and actually extended to control cases about social services. Charitable choice legislation should not codify this discredited concept.
Whether there is one corporation or two, the real question is whether the religious provider must secularize the part of its operation that delivers government-funded services. Certainly it must fund any religious elements itself; government can pay only for secular services. But must it abandon religious elements altogether? Charitable choice proposals say no, and that is the right answer.
To say that a religious provider must conceal or suppress its religious identity, refrain from religious speech, remove religious symbols from its work area, or hire people who are not committed to its mission, is an indirect way of saying that government can contract only with secular providers. Attaching such conditions to a government contract uses the government's power of the purse to coerce people to abandon religious practices. Such coercion is just as indefensible as if the government coerced people to participate in religious practices. Charitable choice provisions that protect the religious liberty of religious providers are pro-separation; they separate the religious choices and commitments of the American people from government influence.
The ultimate irony in this debate are the people who oppose charitable choice on the ground that if religious organizations take government money, they will eventually be regulated and secularized -- and then also oppose charitable choice on the ground that it protects religious providers against secularizing regulation. They cannot have it both ways. The status quo, in which bureaucrats have discretion to contract with religious providers or boycott them, on whatever conditions the executive chooses to impose, is far more dangerous to religious organizations than a charitable choice bill with clear protections against discrimination and against secularization.
C. Protecting Beneficiaries.
The third change in charitable choice is that it provides explicit protection for the religious liberty of the beneficiaries of government programs. They are entitled by statute to a secular provider on demand. If they choose to accept a religious provider, they may be exposed to religious exercises, but they cannot be required to actively participate.
These are important protections, and I would not support any bill that omitted them. They do not exist in present law. When a bureaucrat chooses to contract with Catholic Charities, no current law requires that he have a secular provider available for all those who request it. And any constitutional protections for program beneficiaries are, like the protections for providers, little known and undeveloped.
IV. Implementation.
Charitable choice is in principle a great improvement for religious liberty. But the difficulties of implementation are serious. Those difficulties are not new; they exist under the status quo, where they have received no serious attention from either side. These difficulties are more visible under charitable choice, because contracts with religious providers are more visible, and both sides have begun thinking about the difficulties. I doubt that either side has thought enough.
I am no expert on government grants and contracts or on the delivery of social services. I cannot offer full solutions to these problems, but I can flag some of the more obvious risks.
A. Ending Government Discrimination.
Charitable choice says government cannot discriminate in the award of grants and contracts. How do you enforce that? Legislatures have found it necessary to enact procurement laws with so many protections against corruption that the process of buying anything for the government has come to be a standard source of jokes. To the usual risks of government contracting, add the religious biases of the general public and of the officers awarding the grants and contracts. Some of them are deeply religious; some of them are strongly secularist; nearly all of them like some religions more than others, and have some religions they really mistrust. Choosing someone to deliver social services is more complex than picking the low bidder on a pencil contract. How do you keep thousands of government employees, federal, state, and local, from discriminating on religious grounds when they award grants and contracts?
I don't know the answer to that question. We are learning that just telling them not to discriminate doesn't work. It appears that open and obvious religious discrimination continued under the limited charitable choice provisions enacted in 1996. Amy Sherman's study, reported at a House hearing in April, found that some states are contracting frequently with religious providers, and that others are not doing so at all.
I don't know how you police bureaucrats, but I think you have to assume that many of them will continue to engage in religious discrimination despite the enactment of charitable choice. Some will refuse to deal with religious providers; some will refuse to deal with non-Christian religions, or non-Western religions; some will prefer religious providers and discriminate against secular providers. You at least need a reporting requirement, so that implementation can be monitored, and you may need to require explanations of any obvious over-or-under representation of religious providers. As we have learned from the civil rights experience, resolving claims of subtle discrimination is a difficult task.
Decentralization reduces the risk of discrimination. For those services that can feasibly be delivered through vouchers, vouchers privatize the choice of providers and thus deprive government employees of the opportunity to discriminate. Decentralized contract awards, with many government employees choosing providers, spreads the risk of discrimination better than centralized contract awards with one or a few employees choosing providers.
B. Deregulating Providers.
Charitable choice proposals have made the most conceptual progress with respect to deregulating providers. Existing legislation and other pending proposals have clear and specific provisions to protect the religious liberty of providers who accept government grants or contracts.
These protections have to be in the statute, because no one can count on the courts to provide them constitutionally. The federal courts systematically underprotect the free exercise of religion, and the Supreme Court believes that when the government awards a contract, it can define the job very precisely and attach all sorts of conditions to ensure that the contractor adheres to the job specifications. Rust v. Sullivan, 500 U.S. 173 (1991). When Congress means to deregulate, it has to say so.
It would be better to vote down charitable choice than to remove the deregulation of religious providers. From a religious liberty perspective, the worst outcome would be to codify a rule that government offers money to religious providers but only on condition that they agree to secularize themselves. An unambiguous and highly visible offer of government payments to change one's religious practice would be worse than the muddled, regulated, and discriminatory status quo.
These protections will be somewhat easier to enforce than the basic rule of no discrimination in the award of contracts, because victims of violations will know immediately when government asks them to change their hiring rules or downplay their religious message. Still, you have to assume that there will be political and bureaucratic resistance to the deregulation of religious providers, and that continued vigilance will be necessary to make it work.
C. Protecting Beneficiaries.
Most charitable choice proposals provide equally clear protections for program beneficiaries. Beneficiaries should be entitled to a secular provider on demand, to decline to actively participate in religious exercises, and to clear notice of these rights. But these rights may be very difficult to implement.
Social service programs have never been funded sufficiently to meet the need, and recent legislation ensures that these programs will be even more severely starved for funds in the future. We have not succeeded in guaranteeing even one provider for all the people who need these services. How can we plausibly guarantee a choice of providers?
The problem is hard enough in big cities; it is far worse in small towns and rural areas. It is hard to envision religious and secular providers operating side by side with government funds in New York City. It is impossible to imagine in Waxahachie, Texas. Nor do I think it is just a matter of sending one or a few dissenters to a private practitioner. Private practitioners tend not to locate in low-income areas, and anyway, there may be many beneficiaries who don't want a religious provider. The beneficiaries are vulnerable and dependent and may be afraid to assert their rights, but government and government-funded providers should not take advantage of that. The goal should be to give each beneficiary his free choice of a religious or secular provider, and at the very least, not to push a religious provider on anyone. I suspect that is a much bigger challenge than the sponsors of charitable choice have talked about in public.
Again, these problems are probably no worse than under the status quo; they are just more visible. When government contracts with religious providers today, I am not aware that it makes any effort to provide secular alternatives. Once gain, charitable choice is an improvement in concept. But implementation is likely to be difficult.
D. Program Efficacy.
A frequent policy question about charitable choice is whether religious providers will help more beneficiaries than secular providers. I don't know; social services are not my field. But my work on religious liberty and the associated experience of religious diversity makes me nearly certain that that is the wrong question.
The right question is whether religious providers will help different beneficiaries than secular providers. If some people in need respond to religious messages but not secular ones, and other people in need respond to secular messages but not religious ones, then the only way to help both groups is to make available both religious and secular providers.
Whether there are significant numbers of people in both groups is an empirical question, but the answer will surely be yes. There are many Americans for whom God is the only source of ultimate meaning and for whom religious messages are more motivating than any secular message ever could be. There are many others for whom stories of God are a giant fraud or a giant game of pretend. And there are yet many others in between, whose views of God are not strong enough to motivate either reform or resistance. Given the enormous diversity of religious views in the country, it seems almost inevitable that there will be a similar diversity of responses to religious and secular providers of social services, and that each type of provider may reach some beneficiaries that the other type of provider could not.
In any event, the question to ask is not whether religious providers will help more people than secular providers, or vice versa. The question to ask is whether offering people a choice of religious or secular providers will help more people than exclusive reliance on one or the other.
V. Conclusion.
Religion should not be forced on any American, but neither should any American be excluded from the operation of social welfare programs because of his religion, or lack thereof. The Religion Clauses are designed to let people of fundamentally different views about religion live together in peace, in mutual liberty, and in equality. Religious choices and commitments are left to the private sector, and to that end, government should neither prefer the religious nor prefer the secular. In its own operations, it must necessarily be secular. But when it chooses to contract out to the private sector, it should contract without regard to religion. This principle minimizes government influence on religion and thus maximizes religious liberty, and this is the true meaning and purpose of separation of church and state.
Minimizing government influence is easier said than done. Charitable choice is admirable in its commitments to nondiscrimination on the basis of religion, to deregulating religious providers, and to protecting program beneficiaries. But each of these commitments will be difficult to implement; each of them requires careful attention from the Congress and from those expert in the delivery of social services.