Religious Action Center of Reform Judaism
Statement Of Rabbi David Saperstein On The Constitutional Role Of Faith-Based Organizations In Competitions For Federal Social Service Funds

Constitution Subcommittee of the U.S House of Representatives
Committee on the Judicary
Rayburn House Office Building 2141
United States Capitol
Washington, DC
June 7, 2001

Good morning Mr. Chairman, distinguished members of the Committee. I am Rabbi David Saperstein, Director of the Religious Action Center of Reform Judaism which represents the 1,700 rabbis, 900 synagogues, with 1.5 million members. I am also an attorney and for many years have taught church-state law on the faculty of Georgetown University Law School. I also serve on the Executive Committee of the Leadership Conference on Civil Rights and on the national board of the NAACP.

I am honored to share this hearing today with three such distinguished constitutional law scholars. Each one is a friend and dedicated champion of religious freedom. I remain disappointed by their support for charitable choice. It seems to contradict so many of the goals and principles we have together espoused elsewhere.

Mr. Chairman, almost all of our synagogues run social service programs. They range from homeless shelters to day care for homeless children so the parents can look for or go to work; from feeding programs to health care provision; from transitional housing programs aimed at helping the homeless get off the streets to literacy programs for kids in our schools. We are enormously proud of these efforts and we commend the President for his call to strengthen this work and to create closer partnership between the government and the faith community. There is much that can and should be done and we are willing to work with him and others in advancing shared goals; but we strongly oppose that component of the Faith Based Initiative that would involve direct government funding our synagogues, indeed of any of America's pervasively sectarian institutions.

So I am here today to urge you to reject charitable choice. Charitable choice is bad for religion, bad public policy, unconstitutional, and socially divisive. All this for a program that will not necessarily help one more needy person.

Charitable Choice is Bad Public Policy

The politician's version of the old lawyer's adage goes, "when the law is against you, argue the public policy; and when the public policy is against you, argue the law." There are, in this case, however, strong public policy and legal arguments against charitable choice. So before discussing the vital constitutional and legal reasons to oppose charitable choice, I want to review a number of the policy reasons to be deeply alarmed about charitable choice concerned.

First, with government money comes government rules, regulation, audits, monitoring, interference, and control. Your colleague Representative Chet Edwards has warned "it will be a religious nightmare to have federal agents, including IRS agents auditing the finance of churches, synagogue and mosques across the land." And he's right. Even on the issue of effectiveness of the programs there will be intrusive monitoring. President Bush, for one, has often stressed the importance of accountability, arguing that schools and other recipients of federal funds need to be held accountable for the results they achieve, or fail to achieve. And he's not wrong. Taxpayers have a right to know what results are being achieved with what the President often reminds us is their money. So, too, it seems, for religious organizations, including houses of worship. In April, Dr. John DiIulio, the Director of the White House office on Faith Based and Community Outreach, said that the Administration would conduct annual audits to ensure that funds did not continue to go to groups whose programs failed. (Of course, the government's definition of failure and the church's definition may be quite different.)

Second, with government money comes compromises in the religious mission of the churches, synagogues and mosques of America. Reliance on government funding, creates the temptation to mute the prophetic obligation of calling the government to account.." Further, when there are limits placed on religious activity in government-funded programs (as the Constitution demands), those churches committed to including such activities as essential to their programs must either compromise their mission to obtain the money or ignore the rules with potentially dire consequences to the beneficiaries of services and to the churches.

In addition to the threat to their traditional - and cherished - autonomy, government funding of houses of worship provides another, more subtle but equally alarming, danger - the undermining of the mission of the institution. To be sure, I don't think that erosion of the character of religious institution will be intentional or immediate. But it's likely nonetheless.

The Wall Street Journal reported an interesting example of the type of "mission creep" that is likely, perhaps inevitable, as religious institutions look to the government for funding. Massachusetts subsidizes portion a large of charitable work undertaken by Catholic Charities in that state. In the mid-1990's, the state began to shift its funding priority from other areas to substance abuse. As the funding shifted, so did the programs offered by Catholic Charities. Programs such as soup kitchens and childcare closed, and drug and alcoholic treatment centers opened. By 1995, Catholic Charities in Massachusetts spent 80% of its funds on substance abuse programs.

Stanley Carlson-Theis, a leading policy analyst now working in the White House Faith-Based Initiative office, has termed this shift of emphasis "vendorism." Vendorism, he notes, is a "process in which government grants end up diverting the priority of charities, changing their direction and turning them into mere vendors of government programs." What a loss to our nation if our houses of worship were to become "vendors of government programs!"

Third, by opening up our nation's limited funding for social services to, potentially, scores of thousands of houses of worship, countless millions of dollars will be diverted from, and thus weaken, what are widely regarded as the finest, most effective social service providers today - the superb (albeit overwhelmed) "religiously affiliated" social service providers (such as Catholic Charities, Jewish Federations, Lutheran Social Services etc.), all of which abide by the vast majority of regulations applicable to other charities. Without a national commitment to substantial increases in funding, there is no guarantee one more needy person will be helped by this ill-advised initiative.

Fourth, charitable choice will lead to increased social divisiveness in America. For Catholic charities and the Jewish federations to compete for grants is one thing. The local agencies they support are professional social service providers that, over the years, have worked out the pattern of funding and working relationships. Local houses of worship are altogether different choosing between then comes much closer to choosing between religions. It is difficult to know how many of our 350,000 houses of worship (some 60% of whom, according to the studies, provide social service programs) will seek government funding for their social service. Let's assume it will be only one-tenth. That will mean 35,000 local churches, together with local religious ministries and schools will be competing. The Episcopal Church, the AME Zion Church, and the local mosque, competing one against the other for grants. They all come to you here on Capitol Hill for assistance. One gets it and the others don't and they want to know from you: Why? And, of course, politics will often determine who gets these grants and that means that it is the smaller, minority religious groups who are likely to be left out. Indeed, these very political realities already result in many minority religious groups facing particular problems in finding locations to build houses of worship. The recent Pew polls showed that substantial majorities feel that Buddhist and Muslim social service providers should not receive federal funds.

The prospect of intense competition for limited funding; the politicizing of church affairs to obtain funds; the impact on those made to feel they are the outsiders when they fail to obtain the funds -this leads to the very kind of sectarian competition and divisiveness that have plagued so many other nations and which we have been spared because of the separation of church and state. The debate over these programs thus far suggests the potential for real ugliness that lies ahead if we move forward. Rev. Jerry Falwell, for example, suggested that Islamic organizations should never be eligible for funding, because the "Muslim faith teaches hate." Rev. Eugene Rivers (who runs such effective programs) has argued that opponents of Charitable Choice on the right and on the left are racially-motivated, claiming that their concern is that federal money will go to inner-city, and largely African-American, churches. The religious right and the secular left, Rivers told the website, "share an indifference to the needs of the poor and the inner city."

Fifth, such funding violates the religious rights of the taxpayers. Even in cases where courts have held that taxpayers do not have standing to assert a free exercise claim to contest the use of their tax dollars for religious purposes, it still is wrong on a policy level and it exacerbates religious tensions. As Jefferson said: "[T]o compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical." This helps explain why so many religious leaders - on the left and the right - oppose the program.

This last issue has been particularly problematic for my community. We have often been the targets of people who seek to convert us to their religion. You may remember that last year during our High Holiday celebrations, a period they referred to as a time of heightened spiritual awareness, the Southern Baptist Convention specifically targeted Jews for conversion. And two weeks ago, the head of Teen Challenge, a group often trumpeted by the President as the kind of faith based organizations he believes ought to get government funding (and to which he provided funding in Texas), acknowledged that his program has the effect of converting (in his term, "completing") Jewish kids. They have every right to engage in this activity (as wrong as I may think it would be). But the notion that their efforts to convert our children will now be enhanced by our tax dollars which have freed up money to go about this work is, I hope, as troublesome to you as it is painful to us.

Charitable Choice is Unconstitutional

Four constitutional and legal issues compel rejection of these charitable choice proposals.

First, in all the discussion of all the cases that you have heard here today, there is one central principle, one legal standard, that you must keep in mind. The Supreme Court of the United States (and the vast majority of the lower courts as well) has never upheld direct government cash support for pervasively sectarian institutions. Indeed, in cases (many of which have been alluded to here today) where the High Court and other courts have upheld some type of government support for religious institutions, they have gone out of their way to distinguish it from exactly the kind of direct government subsidy of houses of worship and religious ministries and parochial schools that is entailed in charitable choice.

In Bowen, the case that upheld government support for religious groups that provided pregnancy care services and prevention services, the Court said: " Even when the challenged statute appears to be neutral on its face, we have always been careful to ensure that direct government aid to religiously affiliated institutions does not have the primary effect of advancing religion. One way in which direct government aid might have that effect is if the aid flows to institutions that are ‘pervasively sectarian.' We stated inHunt that:

[a]id normally may be thought to have a primary effect of advancing
religion when it flows to an institution in which religion is so pervasive that
a substantial portion of its functions are subsumed in the religious mission."

In Rosenberger, upholding the use of student fees at a state university to pay for publications including religious publications, the court observed:

The neutrality of this program distinguishes the student fees from
a tax levied for the direct support of a church... The Court of Appeals
(and the dissent) are correct to extract from our decisions the principle
that we have recognized special Establishment Clause dangers where the
government makes direct money payments to sectarian institutions."

The principle articulated in Bowen and Rosenberger was reaffirmed as recently as last year when a majority of the Court in Mitchell v. Helms - two Justices who concurred in the holding allowing the loan of federally-funded computers to religious schools, joined by three dissenting Justices - noted the 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."

The Supreme Court has noted that in pervasively sectarian institutions, religion is so subsumed in the entire program that it cannot be separated out, and since funding is fungible, a major program of support to any part of the institution will constitute government funding of religion, thereby violating the Establishment Clause. Common sense says the justices are right. And because support to any part of the institution is support to all of it, such government funding violates what has been a first principle of the First Amendment. As James Madison wrote: "The Appropriation or funding of the United States for the use and support of religious societies contrary to the article of the Constitution which declares that Congress shall make no law respecting an establishment of religion."

Second, the rights of beneficiaries would inevitably be infringed. As Professor Laycock and others have noted, in the real world, protecting beneficiaries will be difficult, and, I might add, all but impossible. How can we ensure that the promise of a non-sectarian provider of social services is made real, especially given the challenge of providing such services in rural or inner-city areas? How can we ensure that beneficiaries have the right, not just in theory but also in practice, to decline to participate in religious exercises without jeopardizing their benefits? No matter what kind of protections charitable choice legislation tries to create, without extensive government surveillance such abuses will continue. And such surveillance, of course, poses its own set of risks for religious institutions.

Third, churches and synagogues have been (rightly!) exempted from many laws that would compromise their religious freedom, including the right to discriminate in whom they hire on religious grounds. Major government funding for programs with such exemptions may be constitutional but such a program can be part of a campaign to weaken civil rights and will give government sanction for dividing America along religious lines.

Since the High Court has determined that these exemptions are not mandated by the Constitution but are rather a constitutionally permissible means for the legislative body to accommodate religion, this debate over whether the flow of government funds should result in a lifting of the exemption is a statutory and policy argument. (It should be noted that there is a constitutional argument that granting a "religion specific" exemption for government funded programs is a violation of the Establishment Clause under the second prong of the Lemon test i.e. primary effect of advancing religion, particularly as applied in the Texas Monthly case, prohibited the singling out of religion for a benefit. This remains an unresolved issue.)

So you are faced with a wrenching tension between two valid moral principles. The first is that government should accommodate the ability of religious organizations to function. To take the exemption away is to curtail that religious freedom in a manner that will threaten other exemptions. When religious groups buy into that they could be jeopardizing their birthright of a unique constitutional and legal status in exchange for the privilege of lining up at the public trough to fight among themselves over the porridge of government funds. The second is that government money should not be used to discriminate against protected classes of people. To grant the exemption, with anything more than incidental government funding behind it, is to turn back the clock on civil rights in this country, allowing for widespread discrimination on the basis of religious identity and practice. This is the approach of the Watts/Hall Bill. The notion that a job notice could be placed in the newspaper seeking employees for a government funded social service program run by a Protestant church that reads "Jews, Catholics, Muslims need not apply" or "No unmarried mothers will be hired;" is deeply and profoundly troubling to many in the religious community, on Capitol Hill, and, according to a recent Pew Poll on this issue, to 78% of the American public.

There is only one way to prevent this problem: don't violate the constitutional prohibition against direct government funding of sectarian organizations.

Only this will both protect religion and allow for robust, unqualified protections of civil rights. To give the money and then choose either to allow the exemption or to deny it, will pit many religious communities of America against the other civil rights communities. As was the case with the Religious Liberty Protection Act last year, this will foist on Congress an anguishing and politically explosive choice for the many Republican, Democratic, and Independent Members of Congress who are committed both to religious freedom and strong protections of other civil rights.

Finally, much has been made of the argument that all the proponents of charitable choice want is a level playing field, i.e., neutrality between religions and other groups. But it is not the opponents of charitable choice who concocted the idea of treating religion differently; it was the framers of the Constitution. Only religion has an Establishment Clause with all of the attendant protections and limitations that imposes. To abandon this idea in pursuit of "a level playing field" is a political time bomb for religion in America. To insist that religion be treated just like everything else is, again, to jeopardize the many special treatments and exemptions that religion enjoys. Why would those who intend to enhance religious protections advocate that? If we insist on treating religion "equally" to obtain funding, others will argue we should do so in all matters. This is particularly puzzling from some of my colleagues here who have been eloquent in arguing in the Free Exercise realm that facial neutrality, (i.e., treating religion like everything else), is not what is constitutionally called for. Rather the Constitution requires the functional neutrality of government towards religion. And the best way to achieve that is to keep government and religion separate even at the cost of direct government funding of religious institutions. For 200 years, the wall separating church and state has kept religion free of government interference, protecting the religious freedom of all, and allowing religion to flourish with remarkable vitality and strength. Taking the sledgehammer of government funding to the wall would be a major retreat from the vision of our founders.

A Better Path

There is much to commend in the President's proposed Faith Based Initiative and there are myriad ways that government and the religious community can partner to strengthen the religious community's social service work and, together, to better serve our nation's poor and needy.

There are many constitutional ways to achieve our common goals: providing technical assistance and training programs for staff of all groups; best practice sharing; targeted research on how to improve programs; reducing, or even eliminating, fees for all small organizations, including churches and synagogues, to establish separately incorporated 501(C) social service arms to assist the poor; providing more and better information to the public about available programs; and encouraging charitable contributions through appropriate tax relief.

Together, with mutual respect and some hard work, we can respect religious liberty, protect our Constitution and our religious institutions, maintain religion's vital role in the public square, and promote the excellent work our religious institutions do in carrying out their prophetic mission to help those in need.

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