Mr. Chairman and Members of the Committee: My name is Wade Henderson and I am the Executive Director of the Leadership Conference on Civil Rights (LCCR). I also serve as Counsel to the Leadership Conference Education Fund (LCEF). I am pleased to appear before you today on behalf of the Leadership Conference to discuss the charitable choice provisions in the Bush Administration’s “faith-based initiative;” and to discuss the potential harm to civil rights laws that could result from the failure to consider appropriate safeguards.
The Leadership Conference on Civil Rights is the nation’s oldest, largest, and most diverse coalition of organizations committed to the protection of civil and human rights in the United States. Since its establishment in 1950 by A. Philip Randolph, Arnold Aronson, and Roy Wilkins, three civil rights leaders who would eventually receive the Presidential Medal of Freedom, the Leadership Conference has promoted the passage, and monitored the implementation, of laws designed to achieve equality under law for all persons in the United States. LCEF was founded in 1969 as the education arm of the civil rights coalition and continues to fill that role today.
Today, the Leadership Conference consists of over 180 organizations working in concert to advance the cause of equality. Our coalition includes groups representing persons of color, women, labor organizations, persons with disabilities, older Americans, gay men and lesbians, major religious groups, and civil liberties and human rights interests. It is a privilege to represent the civil and human rights community in addressing the Committee today.
We would like to make clear at the outset of this testimony that the Leadership Conference approaches this issue with great respect for the many religiously-affiliated organizations, such as Catholic Charities USA, United Jewish Communities, and Lutheran Social Services, that have long received federal, state, and local funds to serve important needs in our communities. The charitable choice provisions under consideration today will have no effect on the important work of these well-known organizations. Moreover, to my knowledge, none of the Leadership Conference members that oppose charitable choice are seeking to change, in any way, the operations of the several religiously-affiliated groups that already participate in federal programs.
We also strongly support the fundamental principle that our nation’s privately-funded religious organizations -- our churches, synagogues, mosques, and other houses of worship -- should always enjoy the constitutional freedom to pursue their religious missions through their ministries to our communities. The Leadership Conference and many of its members have supported religious freedom with our own long history of working toward laws that protect religious exercise, including the right of each person to be free from discrimination based on religion. Further, I would add that, as with the religiously-affiliated groups, no one opposed to charitable choice is seeking to change the way any of these privately-funded religious groups operate.
The Leadership Conference also would like to take this opportunity to offer its commitment to work with members of the Senate Judiciary Committee to find a better, non-discriminatory way to ensure that federal money goes to whichever organization can best serve a community’s needs and is willing to abide by the laws that apply to federal contracts and grants. We understand the frustration of the many smaller privately-funded service providers, both religiously-affiliated and secular, who feel excluded from federal programs because the regulatory hurdles seem too high. We believe that we can find an appropriate way to bring these groups into federal programs, even as we remain committed to civil rights protections and other necessary safeguards. We believe that such a “win-win” solution is possible, and is well worth all of our efforts to find it.
CHARITABLE CHOICE: A NEW THREAT TO CIVIL RIGHTS
The Leadership Conference believes that the employment provision of charitable choice threatens a cornerstone principle of our nation’s civil rights laws, i.e., that federal funds generally will not go to persons who discriminate against others. It is hard to overstate the importance of our national commitment to this principle. Not only should all of us be free from discrimination by the government itself, but we also should have the assurance that our government is not providing federal dollars to programs that discriminate against others.
Ironically, we are defending the principle that the government should not fund persons engaged in religious discrimination almost sixty years to the day it was first enunciated. On June 25, 1941, President Franklin D. Roosevelt signed the first Executive Order, No. 8802, prohibiting federal defense contractors from discriminating based on race, religion, color, or national origin. Not only was the Roosevelt Executive Order the beginning of a long national commitment to barring federal funds to most persons who discriminate against others, it also was the first national victory of the modern civil rights movement.
Sixty years ago, despite the increase in employment as the nation prepared for World War II and provided defense materials to the rest of the free world, minorities were largely excluded from the nation’s economy. The use of federal funds as the source of all of the new economic activity compounded the injustice of discrimination. Recognizing the special harm of federal dollars going to persons who discriminate, President Roosevelt agreed to sign a landmark executive order prohibiting federal defense contractors from discriminating based on race, religion, color, or national origin.
In subsequent executive orders, President Roosevelt covered all federal contracts, including non-defense contracts; and Presidents Truman, Eisenhower, Kennedy, and Johnson expanded the protections. The current executive order is Executive Order No. 11246, which has been in effect since 1965. The executive orders also spawned scores of nondiscrimination provisions that bar discrimination in specific federal programs, and influenced the development of agency rules that prohibit discrimination by federal contractors and grantees.
It is this fundamental principle of non-discrimination, reflected first in these executive orders, and later, in the host of civil rights statutes that ban discrimination by recipients of federal funds, that we are committed to protecting here today. Based on our review of the development of charitable choice legislation, the Leadership Conference has concluded that charitable choice threatens to erode that fundamental principle by allowing federal funds to go to persons who discriminate in employment based on religion.
The core of the charitable choice provisions of the faith-based initiative is its anti-civil rights employment provision. For example, the charitable choice provision in S. 304, the “Drug Abuse Education, Prevention, and Treatment Act of 2001” provides that the Title VII exemption for religious organizations -- which permits religious employers to prefer members of their own religion -- “shall not be affected by the religious organization’s provision of assistance under, or receipt of funds from, a program” described in the legislation. Allowing Title VII’s religious exemption to be applied to staffing decisions by federally-funded religious organizations would result in a harmful exception to the longstanding principle that federal funds generally may not go to persons who discriminate.
The objective of charitable choice is to push aside every other statutory and regulatory protection against religious discrimination. The sixty years of developed civil rights protections against federal funds going to persons who discriminate in employment based on religion will have no place in the newly authorized programs. Thus, federally-funded religious organizations participating in these programs could fire, or refuse to hire, anyone who did not belong to the employer’s religion.
Charitable choice could further undermine the nation’s civil rights protections by allowing federally-funded religious organizations to require employees to adhere to the religious practices of the federally-funded religious organization. For example, several courts have interpreted the religious organization exemption in Title VII to allow a religious employer to require employees to adhere to the teachings and tenets of the religion. The “religious practices” requirement could create a conflict with the enforcement of civil rights laws protecting persons against discrimination on the basis of characteristics such as race, gender, pregnancy status, sexual orientation, or marital status.
These are conflicts that the country can and should avoid. Our nation already went through over a decade of litigation to determine whether Bob Jones University’s claim that it had a religious right to discriminate against persons on the basis of race overrode the federal government’s interest in denying preferred tax status to groups that discriminate based on race. Bob Jones Univ. v. United States, 461 U.S. 574, 604 (1983). Although Bob Jones University lost that case, we know that other religious institutions have claimed a religious basis for discriminating against others based on gender and pregnancy status, see Boyd v. Harding Academy of Memphis, Inc., 88 F.3d 410 (6th Cir. 1996) (a religiously-affiliated school could dismiss an unmarried, pregnant teacher because premarital sex was against the church’s teachings); marital status, see Little v. Wuerl, 929 F.2d 944, 951 (3rd Cir. 1991) (a religiously-affiliated school could fire a teacher who did not have her marriage annulled in accordance with the religion’s practices); and sexual orientation, see Hall v. Baptist Memorial Health Care Corp., 215 F.3d 618, 625 (6th Cir. 2000) (a religiously-affiliated school could fire a school counselor after she attained a leadership position in a church that accepted gay and lesbian members). In addition, the Leadership Conference does not want to risk reopening the possibility that groups that discriminate based on race, like Bob Jones University could now prevail under charitable choice.
As bad as the problems are with the charitable choice provision in S. 304, they can get even worse. For example, some have suggested amending S. 304 to include the employment provision from H.R. 7, the “Community Solutions Act of 2001,” which the Bush Administration endorsed as the legislative vehicle for its faith-based initiative. The employment provision in H.R. 7 is even more sweeping than the corresponding provision in S. 304. H.R. 7 provides that, for twelve federal program areas, “[i]n order to aid in the preservation of its religious character, a religious organization that provides assistance under a program described in subsection (c)(4) may, notwithstanding any other provision of law, require that its employees adhere to the religious practices of the organization.” H.R. 7, 107th Cong. § 201 at pp. 22-23 (2001). Thus, the employment provision in H.R. 7 squarely seeks to override all other civil rights laws that protect against religious discrimination.
Supporters of H.R. 7 have pointed to a provision, not included in S. 304, that purportedly saves a short list of civil rights statutes from the effect of its otherwise sweeping employment provision. Thus, laws such as Title VI of the Civil Rights Act of 1964, the Rehabilitation Act, and Title IX of the Education Amendment of 1972 would continue to apply to all providers under H.R. 7.
However, that savings provision would not provide meaningful protection against employment discrimination. None of the cited laws provide any protection against employment discrimination based on religion, sex, pregnancy status, marital status, or sexual orientation. In addition, the Rehabilitation Act incorporates by reference the employment provisions of the Americans with Disabilities Act, which allows religious employers to prefer members of their own religion.
Moreover, Title VI of the Civil Rights Act of 1964 provides only incomplete protection against employment discrimination based on race in federal programs and activities. Title VI’s prohibition against discrimination based on race, color, and national origin in federal programs and activities includes employment discrimination only “where a primary objective of the Federal financial assistance is to provide employment.” 42 U.S.C. § 2000d-3. As a result, a federally-funded religious organization could apply the H.R. 7 employment provision in firing a person who refused to adhere to the religious organization’s racially discriminatory practices. Unless a primary objective of the federal program was to create employment, the fired employee would have no recourse under Title VI, Title VII, or any other federal civil rights law. Thus, not only could race discrimination occur with no federal remedy, but the person engaging in race discrimination could receive federal dollars.
CHARITABLE CHOICE GOES FAR BEYOND CURRENT LAW
The Leadership Conference would also like to take this opportunity to address directly two arguments which have been offered to counter our position against charitable choice legislation. First, we do not seek to use this legislation to undo any of the exceptions to fair employment laws currently available to religious organizations. Second, the provision of federal funds to certain religiously-affiliated organizations, does not support allowing religious discrimination by providers of other federal services.
On the first point, the Leadership Conference and its members have no intention of eliminating any of the statutory exemptions for religious organizations to prefer members of their own religion in employment. Moreover, many of those exemptions are constitutionally compelled as a means of ensuring free exercise of religion. Although individual members of the Leadership Conference may disagree on the scope of a few of the exemptions, we know of no current or planned efforts by anyone to seek legislation to reduce or eliminate these exemptions.
On the second point, although many religiously-affiliated organizations receive federal funds, most of these organizations follow the same rules as every other federally-funded service provider, including an agreement not to discriminate based on religion. However, other organizations, such as certain universities and hospitals, receive federal funds in the form of student aid grants and Medicare payments that the courts view as aid to the beneficiary, rather than aid to the institution. Thus, some courts have held that many of those organizations do not have to comply with all of the requirements that apply to federal contractors and grantees. In addition, many religiously-affiliated universities, hospitals, and other service providers organize themselves in ways that partition religious activities from secular activities, and claim a religious organization exemption for some parts of the organization, but not others. These practices are not analogous to charitable choice.
There certainly may be individual contractors or grantees or specific programs or administrators which authorize religious discrimination in a federal program or activity. However, even if such discrimination occurs, it is not necessarily constitutional, legal, or wise. Simply finding an instance of a federal contractor or grantee discriminating based on religion is not itself a reason to legislate more opportunities for new harms.
FINDING A BETTER WAY
We believe that there are better ways to bring more groups into the important work of providing social services to communities in need. The Leadership Conference offers its cooperation and assistance in developing new legislation to assist smaller providers of social services--both religiously-affiliated and secular--in gaining easier access to federal programs. We appreciate how intimidating programmatic requirements, including civil rights safeguards, may appear to organizations that have never participated in federal programs. However, we believe that the successful participation of many religiously-affiliated organizations in federal programs--groups such as Catholic Charities, United Jewish Communities, and Lutheran Social Services--provides a good model for further legislation.
New legislation could include provisions for: (1) technical assistance in setting up a service provider, locating grant and contract opportunities, and applying for grants and contracts; (2) clear statements of responsibilities and liabilities of federal contractors and grantees; (3) specific models for how federal contractors and grantees can comply with civil rights laws and other safeguards; and (4) waiver of any incorporation or application fees for small nonprofits.
Of course, these suggestions are not exhaustive. However, we hope to work with members of the Committee in developing these and other ideas into new legislation that would meet many of the objectives of charitable choice, even as federal contractors and grantees would continue to comply with civil rights and other safeguards. Thank you again for the opportunity to testify before you.