TESTIMONY OF RICHARD T. FOLTIN
LEGISLATIVE
DIRECTOR AND COUNSEL
THE AMERICAN
JEWISH COMMITTEE
OFFICE OF
GOVERNMENT AND INTERNATIONAL AFFAIRS
HEARING OF
THE SENATE JUDICIARY COMMITTEE
on
“FAITH-BASED SOLUTIONS: WHAT ARE THE LEGAL ISSUES?”
June 6, 2001
The American Jewish Committee
Office of
Government and International Affairs
1156 15th St., NW, Suite 1201
Washington, DC 20005
(202) 785-4115, fax: (202) 659-9896
e-mail: foltinr@ajc.org
My name is Richard Foltin. I am Legislative Director and Counsel in the Office of Government and International Affairs of the American Jewish Committee, the nation's premier human relations organization with over 100,000 members and supporters and chapters in 32 cities across the United States. Thank you, Mr. Chairman and Mr. Ranking Member, for the opportunity to testify today about AJC’s perspective on the legal issues presented by the approach to government funding of faith-based social services providers generally known as “charitable choice.”
No topic could be timelier than the one that the
Committee will consider today. On
January 29, 2001, President George W. Bush issued two executive orders that
began implementation of one of his major policy priorities, expansion of the
involvement of “faith-based
organizations” in the provision of government-funded social services. The first executive order created a new
White House Office of Faith-Based and Community Initiatives, tasked with
establishing policies, priorities, and objectives in promoting this
policy. The second directive,
coordinated with the provisions of the first, charged each of five designated
Cabinet departments to set up an in-house office in order to identify
“barriers” to the participation of faith-based organizations in the delivery of
social services provided under the aegis of that department, barriers that
could include the department’s standing regulations and practices, and make
recommendations for reforms to remove those barriers. This process of review and recommendation is expected to be
completed in the coming weeks.
The President’s unveiling of his faith-based initiative has given rise to a storm of controversy, with concerns expressed by advocates on both the right and left as to the implications of this approach for church-state separation, civil-rights policy, and the autonomy of religious institutions. This controversy has taken place, however, with much still unclear as to the specifics of how President Bush’s vision of an expanded partnership of government and religious institutions will operate. But even if we do not know the details of the President’s program, many of its likely elements are to be found in the “charitable choice” construct first enacted as part of the 1996 welfare reform law,[1] an approach subsequently passed by Congress and signed into law by President Clinton in several other social services bills[2] and included in a bill under consideration by this Committee, S.304, the Drug Abuse Education, Prevention and Treatment Act of 2001.
We share and commend the desire to deal constructively with society’s ills that has led President Bush to develop his faith-based initiative and that, no less, has motivated both of you, Senators Hatch and Leahy, to introduce S.304 in an effort to address the drug problems that affect so many of our communities. But the “charitable choice” approach to government funding of social services is, in our view, an unconstitutional breach of the principle of separation of church and state and just plain bad public policy.
The Problems with “Charitable Choice”
The history of social services in this country began with
religious institutions, and the partnership between religiously affiliated
institutions and government in the provision of those services is a venerable
one. Catholic Charities, not to mention
many Jewish agencies across this land, have been engaged in such public-private
partnerships for many years. The norm
has been for these 501(c)(3) organizations to provide government-funded,
secular social services in a fashion that does not involve proselytization,
does not require religious worship, and does not discriminate on the basis of
religion with respect to the employees they hire to provide their services or
the recipients of those services. And
these religiously-affiliated organizations have been able to do so without
divesting themselves of their religious identities, while continuing to make
available privately-funded, separately offered religious activities. Thus, Catholic hospitals, which receive
public funds, have crosses on their premises, and Jewish homes for the elderly,
which also receive public funds, have mezuzoth
on the doors and hold Shabbat services
on Saturday mornings.
Far from objecting to this history of partnership, the American Jewish Committee, in its 1990 Report on Sectarian Social Services and Public Funding, termed the involvement of the religious sector in publicly-funded social service provision as "desirable to the extent it is consistent with the Establishment Clause. It creates options for those who wish to receive the services, involves agencies and individuals motivated to provide the services, and helps to avoid making the government the sole provider of social benefits."
Our concerns about
“charitable choice,” then, do not reflect any lack of high regard for the
important work that religious institutions do in providing social services nor
an effort to erect an impassible barrier to cooperation between these
institutions and the government in the provision of those services. Rather, we are opposed to “charitable
choice” because it eliminates long-standing and important church-state and
antidiscrimination safeguards that have historically been in place when
religiously affiliated organizations are engaged in provision of
government-subvented services.
Contrary to long-standing practice and judicial precedent, “charitable choice” permits houses of
worship and other pervasively religious institutions to receive taxpayer
dollars for provision of social services.
In 1988, in Bowen
v. Kendrick, even as the United States Supreme Court upheld as
constitutional the participation of religiously affiliated organizations that
are not themselves pervasively sectarian in a federally funded program on the
assumption that the program would be implemented “in a lawful, secular manner,”[3]
the Court cited precedents holding that aid flowing to “pervasively sectarian”
organizations “normally may be thought to have a primary effect of advancing
religion” because “there is a risk that government funding, even if it is
designated for specific secular purposes, may nonetheless advance the
pervasively sectarian institution’s ‘religious mission.”[4] The Court’s reference to risks attendant on
government funding of pervasively religious institutions was grounded in a core
concern to which the First Amendment’s prohibition on government establishment
of religion was addressed, that the state not be allowed to utilize its taxing
authority to fund religion.
The principle articulated in Bowen v. Kendrick
remains in place. As recently as last
year, a majority of the Court in Mitchell v. Helms[5]
– two Justices who concurred in the holding allowing the loan of
federally-funded computers to religious schools, joined by three dissenting
Justices – reaffirmed that there are special concerns associated with the flow
of government funds to pervasively religious organizations. As Justice O’Connor noted in her concurring
opinion, “Our concern with direct monetary aid is based on more than just
[concern about] diversion [of tax-funded aid to religious uses]. In fact, the most important reason for
according special treatment to direct money grants is that this form of aid
follows precariously close to the original object of the Establishment clause’s
prohibition.”[6]
And, beyond those concerns,
always applicable when government funds flow to pervasively religious
institutions, “charitable choice” presents an additional problem: When institutions with a thoroughly
religious environment provide social services, recipients of those services may
well be coerced, either explicitly or tacitly, to take part in religious
activities as a price of receiving help.
Proponents of “charitable choice” have pointed to several typical
provisions as affording sufficient protection against this occurring, such as
prohibitions on the use of program funds for "sectarian worship,
instruction or proselytization" and on discrimination against
beneficiaries on the basis of religion, as well as the requirement that
beneficiaries of social services shall be entitled to have those services
provided by a secular agency if they so desire. But none of these are sufficient.
As to the prohibitions on
use of funds for sectarian purposes and on discrimination, it is not reasonable
to expect, in the context of pervasively religious institutions, a separation
between the provision of secular social services for which taxpayer dollars are
used and the religion-teaching activities of those organizations. Moreover, nothing in “charitable choice”
precludes privately funded religious activities from taking place in and around
the services paid for with public funds in a fashion that will suggest strongly
to beneficiaries that these are activities in which they ought to be
engaged. And, as to the requirement
that there be available alternative secular providers, it is, frankly,
difficult to believe that those alternative providers will always be reasonably
available, if available at all, particularly in rural or homogenous areas. It is important to recall as well, with
respect to these “protections” that the recipients of services provided under
“charitable choice” are often in extremis. They may not clearly understand their
options and their rights, and, even if they do so understand, they may be
reluctant to take steps that might delay or obstruct their receipt of badly
needed services.[7]
These concerns were reinforced when, early this year, the press reported the statement of Administration officials that, under the President’s plan, “programs funded by faith-based organizations could include religious content – such as Bible reading – so long as taxpayer money was used for lights, chairs or other nonreligious expenses,”[8] suggesting that the prohibition on the use of public funds for religious purposes was regarded as nothing more than a bookkeeping formality. Even more troubling were the reports on testimony offered at a House Government Reform subcommittee hearing on “charitable choice” held on May 23rd. At that hearing, John Castellani, executive director of Teen Challenge, a religiously infused Christian substance abuse program, is said to have stated that some Jews participating in the program returned to the Jewish faith while others had become “completed Jews,” i.e., had accepted Jesus.[9] Aside from the sheer offensiveness of the suggestion that Jews who have remained true to their own faith are somehow not “complete,” this testimony underlines the alarms we have raised – that, whatever the technical restrictions on their operations, pervasively religious groups receiving government funds, like Teen Challenge, will simply be unable or unwilling to disassociate their religion-teaching mission from the provision of the social services for which they are receiving government funds. There could be no clearer a violation of core constitutional concerns than for taxpayer dollars to flow to an organization engaged in such proselytizing.
"Charitable choice" also presents a significant potential for fostering divisiveness among various faith groups as they compete for public funding, a potential that will only be multiplied as government officials charged with determining with whom to contract or renew contracts are placed in the role of deciding which religion “works better” in dealing with the social problems to which public programs are addressed. It seems almost inevitable that, whatever claims may be made that contracts will be allocated on the basis of merit, in any given community the religious groups most likely to receive funds will be those associated with “mainstream” faiths. And, even if the contracts are allocated on a totally objective basis, there is likely to be sharp distrust and suspicion that this is not the case.
“Charitable choice” allows religious providers to make employment decisions based on religion with respect to the employees hired to provide taxpayer-funded services. Religious institutions are appropriately permitted to prefer co-religionists in hiring decisions, a limited exemption from the provisions of Title VII of the Civil Rights Act of 1964 that recognizes the powerful religious liberty interests involved. But the explicit extension of that exemption to cover employees providing publicly funded services, as part of a program premised on substantial expansion of the role of pervasively religious organizations in social services provision, runs counter to fundamental civil rights principles.[10] In addition, allowing pervasively religious social service providers to hire only persons of the same faith can only increase the risk already present, by virtue of the nature of those institutions, that beneficiaries will feel compelled to participate in religious activities to which they are not inclined.
Further, despite its provisions intended to protect the religious character of institutions that receive funding, it is hard to see how "charitable choice" will not ultimately lead to an undermining of the distinctiveness, indeed the very mission, of religious institutions. With government dollars comes government oversight; faith-based
organizations will inevitably be held accountable for the use of the dollars they receive just as any other recipient of government funds would be. This intrusion into the affairs of churches and other pervasively religious organizations is exactly the type of entanglement of religion and state against which the Constitution guards. Moreover, if the provisions of “charitable choice” invoked by some proponents as sufficient safeguards against coercion or misuse of government funds for religious purposes are to be taken seriously, we will see a degree of entanglement of government in the affairs of the church (or the synagogue) in a fashion we have not seen before. Pervasively religious organizations will be subject to all manner of intrusive examination to ensure that the services they are providing are not “too religious” or that the funds they receive are not somehow diverted to prohibited activities.
Better Approaches
We have spoken of the paradigm that preceded “charitable choice” – provision of government-funded social services through religiously affiliated (and, of course, secular) organizations, along with other long-standing safeguards – as a preferable approach, indeed one so preferable that it can fairly be said that “charitable choice” is a solution in search of a problem. But there are other ways in which government can cooperate with religious organizations, including those which are pervasively religious, to address our pressing social needs.
On February 27, 2001, AJC and the Feinstein Center for American Jewish History at Temple University issued a landmark report, “In Good Faith: A Dialogue on Government Funding of Faith-Based Social Services,” that grew out of a two-year initiative funded by the Pew Charitable Trusts aimed at finding common ground among diverse religious and public interest groups on government funding of social services provided by religious organizations. The report was initially signed by seventeen faith groups (others have since joined on as well), many of which had participated in the lengthy process, including organizations representing Baptists, Evangelicals, Catholics and Muslims.
While there were important areas of agreement concerning the
parameters for government funding of religious organizations that provide
social services, at the end the groups remained deeply divided on “charitable
choice” and the report reflected that division. Nevertheless, the report pointed to nonfinancial modes of support
the government can afford religious organizations, such as, among other things,
providing information to the public about available programs, affording
organizations access to education and training opportunities, creation of
community-wide task forces, and encouraging charitable contributions through
appropriate tax relief. This last
approach is reflected in portions of President Bush’s faith-based initiative
and in the bill introduced by Senators Rick Santorum and Joseph Lieberman,
S.592, the Savings Opportunity and Charitable Giving Act of 2001, a tax relief
measure supported by many organizations on both sides of the “charitable
choice” debate (including AJC).
The “In Good Faith” report also included some important points of agreement as to the considerations that should apply when government funds social services, again against the background of disagreement on “charitable choice” itself, and a discussion of how nongovernment community support can be provided to the work of faith-based organizations. I ask the permission of the chair to include a copy of the report in the record with my testimony.
Conclusion
In conclusion, there is a conceptual paradox at the heart of “charitable choice.” It is an approach that seeks to allow government to utilize the spiritual ministry of churches, synagogues and other pervasively religious institutions as a tool in the provision of social services while, at the same time, assuring that the programs are administered in a fashion that protects beneficiaries of these services from religious coercion and protects religious institutions from undue interference by the state. This is an approach to social services provision that is untenable because of the practical – to say nothing of the constitutional –problems posed by any effort to reconcile these inconsistent goals. And, given all of these problems that “charitable choice” presents, the irony is that it is an approach that is simply unnecessary.