Testimony
of
J. Brent Walker
on behalf of
the Baptist Joint Committee on Public Affairs
Before The
Subcommittee on the Constitution
of the
Committee on the Judiciary
United States House of Representatives
Regarding State and Local Implementation of Existing
"Charitable Choice" Programs
Tuesday, April 24, 2001
Introduction
Thank you, Mr. Chairman and Members of the Subcommittee, for this opportunity to speak to you on a matter as important as religious liberty.
I am J. Brent Walker, executive director of the Baptist Joint Committee on Public Affairs (BJC). I am an ordained Baptist minister. I also serve as an adjunct professor of law at Georgetown University Law Center, where I teach an advanced seminar in church-state law. I speak today, however, only on behalf of the BJC. (1)
The BJC serves the below-listed Baptist bodies, (2) focusing exclusively on public policy issues concerning religious liberty and its constitutional corollary, the separation of church and state. For sixty-five years, the BJC has adopted a well-balanced, sensibly centrist approach to church-state issues. We take seriously both religion clauses in the First Amendment - No Establishment and Free Exercise - as essential guarantors of God-given religious liberty.
No principle is more important to Baptists and the BJC than religious liberty and separation of church and state. At our best, we embrace the words of John Leland, a Virginia Baptist evangelist, who said over 200 years ago: "The fondness of Magistrates to foster Christianity has caused it more harm than all the persecution ever did." That is why for the last five years the BJC has fought "charitable choice" proposals to allow government to fund religious ministries.
The Problems with "Charitable Choice"
"Charitable choice" - a specific legislative provision that allows pervasively religious organizations, such as houses of worship, to receive government funds to subsidize social services - was first codified in 1996 as part of the welfare reform law. (3) Since then, Congress has passed three additional pieces of legislation containing "charitable choice" provisions. (4)
For the first time since its inception five years ago, "charitable choice" has attracted national attention and scrutiny in the last few months. (5) Today's hearing - the first ever on the topic of "charitable choice" - further attests to that fact. The cause of the focused attention on this important topic is undeniably the attention given to "faith-based initiatives" by President George W. Bush. President Bush opened six federal offices of Faith-Based and Community Initiatives during his second week in office and has listed faith-based proposals, including the expansion of "charitable choice," as one of his top domestic priorities for his administration's first year.
We join others in applauding President Bush's recognition of religion's vital role in addressing social ills. But we believe religion will be harmed, not helped, by directing government money to fund pervasively religious enterprises.
So we oppose "charitable choice" - not because we are against faith-based social ministries - but because of our desire to protect religious freedom.
As the BJC has said for several years, "charitable choice" is the wrong way to do right. (6) The problems with "charitable choice" are many.
First, "charitable choice" is unconstitutional. "Charitable choice" promotes religion in ways that breach the wall of separation between church and state. The United States Supreme Court has long said that governmental financial aid to pervasively religious organizations, even for ostensibly secular purposes, violates the Establishment Clause of the First Amendment. (7) Pervasively religious entities (like houses of worship and parochial schools) - ones that are so fundamentally religious that they cannot or will not separate secular and religious functions - should be disqualified from receiving government grants because to fund them is to fund religion.
In a pervasively religious institution, the money that goes into one pocket goes into all of its pockets. Proponents of "charitable choice" who claim that the provision does not violate the separation of church and state point to a provision that bars government funds from paying for "sectarian worship, instruction or proselytization." However, this so-called "protection" is illusory since privately-funded sectarian worship, instruction or proselytization may operate throughout the tax-funded program. Even if one purports to pay for only the soup and sandwich through a government grant, these funds will necessarily free up other money to pay the preacher to bless the meal and deliver a sermon after dinner. In short, "charitable choice" unconstitutionally funds government services that are delivered in a thoroughly religious environment.
Second, "charitable choice" violates the rights of taxpayers. Just as funding pervasively religious organizations violates the First Amendment's Establishment Clause, taking my taxes to pay for your religious organization, or vice versa, violates the First Amendment's free exercise principles. Although the Supreme Court has never ruled that taxpayers have standing to assert a free exercise challenge to a funding scheme, I believe this is exactly what Thomas Jefferson had in mind when he said that "to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical." (8) It was over 200 years ago, and it is today. Government should not be allowed to use your tax money to promote my religion.
Third, "charitable choice" results in excessive entanglement between government and religion. It is an iron law of American politics that government regulates what it funds. This is what a Virginia pastor friend of mine meant when he asked government not to give us any "pats on the back." For all too often a friendly pat by Uncle Sam turns into a hostile shove by Big Brother.
Some regulation is outlined in the "charitable choice" legislation itself. As already mentioned, religious organizations that receive grants must make sure that the tax money is not used to pay for "sectarian worship, instruction or proselytization." It is a mystery how this legislative language will be enforced without a government officer standing in the sanctuary or poring over the church books, all the while making razor-thin theological judgments about what amounts to worship, instruction or proselytization. The "charitable choice" provision also requires religious organizations to be audited. If funds are segregated, then the audit would be limited to that funding. If the funds are not
so segregated, then government will be able to review all of the church's books.
The regulations set forth in the statute, however, are just the beginning. Other federal and state laws and regulations are triggered by the expenditure of federal tax money. (9) Even in cases where the religious organization agrees with the purpose of those laws and regulations, putting itself in a position to prove the compliance, itself, may be inimical to the autonomy of religious organizations. Ensuring compliance with rules and regulations will also drain the already overtaxed resources of the religious organizations providing services. I agree with the recent observation that churches will spend "more time reading the Federal Register than the Bible." (10)
Fourth, "charitable choice" dampens religion's prophetic voice. Religion has historically stood outside of government's control, serving as a critic of government. How can religion continue to raise a prophetic fist against government when it has the other hand open to receive a government handout? It cannot.
Dr. Martin Luther King, Jr., arguably the twentieth century's best example of religion's prophetic voice, warned:
The church must be reminded that it is not the master or the servant of the state, but rather the conscience of the state. It must be the guide and the critic of the
state, and never its tool. If the church does not recapture its prophetic zeal, it will become an irrelevant social club without moral or spiritual authority. (11)
But cannot religious organizations simply refuse government funding if it begins to harm their ministries? Yes, that is possible, but not likely. Government money may be irresistible to many churches on meager budgets. "Charitable choice" is a temptation
of Biblical proportions. Once the money is taken, religious organizations can develop a dependency, not unlike an addiction to a drug. As conservative Christian commentator Timothy Lamer pointed out:
Federal funding is a narcotic. Once addicted, recipients find it hard to live without. … Once Christian charities get used to collecting the subsidy, they will
develop programs and goals premised on receiving government aid. The threat of losing such aid will be genuinely terrifying. They will surely fight such cuts
and thus become what conservatives detest - recipients of federal grants lobbying for "more." Are Christian conservatives prepared for the sight of Christian
charities lobbying to keep their place at the federal trough? (12)
Fifth, "charitable choice" authorizes religious discrimination in employment. Under Title VII of the Civil Rights Act of 1964, churches and some other religious organizations are granted an exemption to discriminate on the basis of religion in their hiring and firing practices. This exemption, when it applies to privately-funded enterprises, appropriately protects the church's autonomy and its ability to discharge its mission. For example, the Catholic Church must be free to exercise its religion by hiring only Catholics as priests. Courts have interpreted this exemption to apply not only to clergy, but also to all the religious organization's employees, including support staff, and not only to religious affiliation, but also to religious beliefs and practices.
"Charitable choice" explicitly allows religious organizations to retain their Title VII exemption, even in a program substantially funded by government money. Allowing religious organizations to discriminate in the private sector is a welcomed accommodation of religion; but to subsidize religious discrimination with tax dollars is an unconscionable advancement of religion that simultaneously turns back the clock on civil rights in this country.
Sixth, "charitable choice" encourages unhealthful rivalry and competition among religious groups. We enjoy religious peace in this country despite our dizzying diversity for the most part because government has stayed out of religion.
I have heard your colleague Representative Chet Edwards (D-TX) say on several occasions that if he maliciously wanted to destroy religion in America, he could think of no better way than to put a pot of money out there and let all the churches fight over it. I agree. "Charitable choice" is a recipe for religious conflict.
"Charitable choice" also drags religion into the ugly governmental appropriations process - the underbelly of democracy. Government does not have the money to fund every religious group in this country. It will have to pick and choose. All too often, the majority faith in a particular area will prevail. But regardless of who wins, the process will not be pretty.
These six examples are just a few of the problems with "charitable choice." Simply put, "charitable choice" is the wrong way to do right. Thankfully, there are right ways to do right.
Doing Right the Right Way
In dealing with church-state disputes, I always try to find a workable, practical solution even while acknowledging constitutional tensions. Common sense often suggests the best way to proceed. There is a better way. Government and religion may cooperate in the provision of social services in many ways that are good for government, religion, taxpayers and the people served.
To help people of faith evaluate the many permissible ways to cooperate with
government and avoid ill-advised financial partnerships between government and pervasively religious organizations, the Baptist Joint Committee, along with The Interfaith Alliance Foundation, has published a document entitled Keeping the Faith: The Promise of Cooperation, the Perils of Government Funding: A Guide for Houses of Worship. (13) The guide first advises houses of worship to define the vision of their enterprise and then to determine whether government funding or other forms of cooperation will promote or detract from that vision. Keeping the Faith offers the following basic advice.
There are many ways for government and religion to cooperate in the provision of social services while protecting the quality of tax-funded services and the autonomy and integrity of religious organizations.
First, houses of worship may continue to pay for social service ministries the old-fashioned way: with tithes, offerings and funds from other private sources. Government may and should encourage increased private giving. Tax deductions and other incentives to foster corporate, foundation and individual giving are absolutely proper. The idea of encouraging corporate matching funds for employees' gifts to religious organizations and other charities is a good one.
Increasing private funding for charities may also be achieved through expanding deductibility rules for charitable gifts for the 70 million Americans - two-thirds of all taxpayers - that do not currently itemize deductions. This is one of President Bush's faith-based proposals with which there is room for widespread consensus and a positive
impact on the nonprofit sector. According to some estimates, the provision found in Title I of the Community Solutions Act (H.R. 7) would increase annual charitable giving by more than $14.6 billion - a growth of 11% over 2000 giving levels - and encourage over 11 million non-itemizing taxpayers to become new givers. (14)
Government priorities may also encourage the private sector to fund the social service ministries of pervasively religious organizations. Last month, the Robert Wood Johnson Foundation announced plans to provide $100 million in grants to 3,000 religious programs for the disabled and the elderly. (15) Last week, participants in a conference titled "Faith-Based Demonstration for High Risk Youth" reported that private foundations seem to be more generous with their funding of religious organizations since the launch of President Bush's "faith-based initiatives." (16)
Second, houses of worship may spin off religiously affiliated organizations to accept tax funds and provide social service ministries - out of religious motivation, to be sure, but without integrating religion into the government-funded programs. This option was available even before "charitable choice" was passed in 1996, and President Bush's faith-based initiative may inspire more religious organizations to explore this option. This way of delivering social services is exemplified by the good work of Catholic Charities, Lutheran Social Services and United Jewish Communities. Religiously affiliated organizations can continue to minister to the needs of people out of religious motivation and even make available some privately-funded, separately-offered religious activities so long as they do not proselytize, require religious worship or
discriminate on the basis of religion in hiring or service providing. In this vein, Sharon Daly, who leads Catholic Charities, has said that, "We help others because we are Catholic, not because we want them to be." (17)
This option also has another benefit. It sets up a firewall against government regulation of and entanglement with the pervasively religious organization. As long as this is done through a separate organization, the regulation should not seep through the corporate distinction and infect that church or house of worship. The institution-wide application of some regulation mandated by the Civil Rights Restoration Act makes this protection even more critical.
It has been suggested by some that the process of setting up a separate religiously affiliated organization is too cumbersome for some houses or worship, particularly those that are small in size and resources. This suggestion ignores with important realities. First, many churches have successfully established separate religiously affiliated organizations and have operated within safeguards for decades. Second, setting up a distinct 501(c)(3) affiliate should be no more onerous than complying with governmental regulation in the first place. If the real concern is easing regulatory burdens, then the government, specifically the Internal Revenue Service, could provide technical assistance to religious and other community providers wanting to utilize this option.
Third, government should lift onerous restrictions on houses of worship that unreasonably interfere with their ministries. Congress and state legislatures should make sure that religion, including the provision of social services by religious organizations, is properly accommodated. Congress has already taken the lead by passing the Religious Land Use and Institutionalized Persons Act, (18) which protects religious organizations from burdensome zoning laws absent a compelling governmental interest. States should continue to pass state Religious Freedom Acts and localities should adopt zoning classifications that respect the autonomy of churches to run their social services with minimal restrictions.
Fourth, government and religious organizations - even pervasively religious ones - may carefully cooperate in creative, non-financial ways. Houses of worship can expand their influence in this area by partnering with other private organizations that have ties with the government. Government may also support the work of pervasively religious organizations without the use of taxpayer money. For example, government may tout the good work that religious organizations do, make referrals when appropriate, share information, and invite religious providers to serve on government task forces.
These illustrations are just some of the ways in which we are able to forge a win-win situation. They demonstrate that social services can be delivered by religious organizations, the autonomy of pervasively religious organizations can be protected from governmental regulation, and the constitutional values that promote religious liberty, such as separation of church and state, can be preserved.
Implementation of "Charitable Choice"
Although "charitable choice" is now law in four different federal statutes, very few pervasively religious organizations have elected to apply for government funds for their social service ministries. There are several reasons for this gap between legislation and implementation.
First, according to reports, only a handful of states have aggressively implemented "charitable choice" since 1996. (19) Most states have not instituted local regulations to assist pervasively religious organizations in applying for "charitable choice" grants.
Not surprisingly, Texas, the state that has most aggressively implemented "charitable choice," has also drawn the most litigation. Two of the five pending cases involving government funding of pervasively religious organizations are in Texas. (20)
Second, the Clinton Administration did not promulgate rules and regulations to implement "charitable choice." In fact, acknowledging the constitutional problems, the Department of Justice interpreted "charitable choice" to exclude pervasively religious entities from qualifying for receipt of government funds. In his signing statement for the Children's Health Act of 2000, President Clinton noted:
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. (21)
Third, and most instructively, churches and other pervasively religious organizations are hesitant to enter into contractual, financial relationships with the government. The state of Wisconsin received an "A" on Center for Public Justice's report card on compliance with "charitable choice," with the following explanation: "Gov. Thompson (R) made faith-based subcontracts a key performance indicator for W-2 (welfare) contractors in 1998." However, Thompson, now Secretary for Health and Human Services, recently noted that they only awarded government funds to one religious organization: " 'We opened it up and we didn't have as many applications as we thought there would be. We didn't pursue it any more. We made it available.' " (22)
The situation in Wisconsin is not an anomaly. Churches and other pervasively religious organizations understand the dangers of government funding of their social service ministries. Thousands of houses of worship are providing social services across the country, but they are doing it in the right ways - using private funds for their pervasively religious ministries or spinning off separate religiously affiliated organizations to accept government funds.
Conclusion
The Baptist Joint Committee and other religious groups oppose "charitable choice" not because we want to discourage the delivery of faith-based social services. On the contrary, we oppose it precisely because of our religious conviction and our desire to maintain maximum religious freedom in this country.
We all want to do right - to help those in need. Let's do it in the right ways.
1 My curriculum vitae is attached. Neither I nor the BJC has received a federal grant or contract in the current or preceding two fiscal years.
2 Alliance of Baptists, American Baptist Churches in the U.S.A., Baptist General Association of Virginia, Baptist General Conference, Baptist General Convention of Texas, Baptist State Convention of North Carolina, Cooperative Baptist Fellowship, National Baptist Convention of America, National Baptist Convention U.S.A. Inc., National Missionary Baptist Convention, North American Baptist Conference, Progressive National Baptist Convention, Inc., Religious Liberty Council, and Seventh Day Baptist General Conference.
3 Personal Responsibility and Work Opportunity Reconciliation Act, Public Law 104-193 [1996].
4 Community Services Block Grant Act, Public Law 105-285 [1998]; the Children's Health Act of 2000, Public Law 106-310 [2000]; and the New Markets Venture Capital Program Act, Public Law 106-554 [2000].
5 Contrary to some strains of popular opinion, cooperation between government and religion in the provision of social services is not a new idea. It predates this Administration's "faith-based initiatives" and even the 1996 "charitable choice" provision. This cooperation - often between government and religiously affiliated organizations that are not pervasively religious - demonstrates the right way for religion and government to partner in providing social services to those in need.
6 Indeed, the BJC Board adopted a "Resolution on the Charitable Choice Provision in the New Welfare Act" as early as October 8, 1996.
7 See Bowen v. Kendrick, 487 U.S. 589 (1988); Roemer v. Board of Public Works, 426 U.S. 736 (1976);Hunt v. McNair, 413 U.S. 734 (1973); and Tilton v. Richardson, 403 U.S. 672 (1971).
8 "A Bill for Establishing Religious Freedom," Virginia Assembly, presented June 1779.
9 See generally, Rogers, Melissa, "The Wrong Way to Do Right: Charitable Choice and Churches," inWelfare Reform and Faith-Based Organizations; Derek Davis and Barry Hankins, Editors; J.M. Dawson Institute of Church-State Studies, Baylor University, Waco: 1999; pp. 64-67.
10 Tanner, Michael in "Corrupting Charity: Why Government Should Not Fund Faith-Based Charities", CATO Institute, March 22, 2001.
11 King, Jr. Martin Luther, Strength to Love, 1963.
12 Lamer, Timothy in The Weekly Standard, January 15, 1996.
13 Please see BJC Web site, www.bjcpa.org, for the full text of Keeping the Faith.
14 "Incentives for Nonitemizers to give more: An Analysis," PriceWaterhouseCoopers, January 2001.
15 "$100 Million Pledged for 'Faith-Based' Aid," The Washington Post, March 28, 2001.
16 "Private Sector follows Bush, funds faith-based programs," The Washington Times, April 19, 2001.
17 Rogers, "The Wrong Way to Do Right," p. 78.
18 Public Law 106-274 [2000].
19 "Charitable Choice Compliance: A National Report Card," Center for Public Justice, September 28, 2000. Meckler, Laura, "Charitable Choice Rarely Utilized," Associated Press, March 19, 2001.
20 American Jewish Congress and Texas Civil Rights Project v. Bost (W.D. Tex) 00-A-CA-528-SS; Lara v. Tarrant County (Texas Supreme Court).
21 Clinton, President William J., Statement of the President, October 17, 2000, signing of H.R. 4365, the "Children's Health Act of 2000."
22 Meckler, "Charitable Choice Rarely Utilized."