TO: Michael Bopp, Staff Director, Senate Cmte. on Govt. Affairs
FROM: Nathan J. Diament, Dir. of Public Policy – Union of Orthodox Jewish Congregations of America
RE: S.2275 (Talking Points re: High Risk Non Profit Security Enhancement Act) and “Faith-Based” Debate Issues
DATE: For July 21, 2004 Mark Up Session

1. The structure by which S.2275 will deliver federal aid for physical security upgrades for non-profits at risk of terrorist attack – specifically, having the upgrades installed by contractors retained by DHS, rather than a more simple (and perhaps efficient) grant program – is specifically due to a great sensitivity to concerns about the laws governing the relationship between the government and religious institutions – who will be among the non-profits eligible to receive aid under this program.(1)

2. The contracting structure is a carefully negotiated compromise which resulted from months of negotiations and discussions among various organizations and congressional offices which have been on both sides of recent debates over church-state issues and the faith-based initiative. As a result of these discussions, S.2275 as introduced has the support of traditional proponents of greater federal aid to religious groups such as the Union of Orthodox Jewish Congregations and the Ranking Member (Lieberman) as well as longstanding opponents of the faith-based initiatives such as the American Jewish Congress and Representative Jerrold Nadler. In fact, this legislation in this form was favorably approved last month on a voice vote by the House Judiciary Committee.

3. Thus, pressing for further modifications of S.2275 at this time will likely upset this carefully crafted compromise which has garnered this consensus.

4. While legislation under which religious institutions participate fully and equally in federal programs has sometimes been controversial, there are precedents – of a kind more similar to S.2275 than others – which have not generated great controversy.

Precedent – Church Arson Prevention Act (P.L. 104-155)
In 1996, in the wake of a series of criminal acts in the southern U.S. in which African American churches were destroyed by arson, Congress enacted the Church Arson Prevention Act. Among its provisions, CAPA created a loan guarantee program administered by H.U.D., similar to that contained in S.2275, through which affected congregations could secure loans on better-than-market terms for the reconstruction of their churches. Strikingly, this program did not restrict the use of these funds to the construction of peripheral or “secular” elements of the church – as is the case in S.2275, such funds are available for the construction of the church from nave to steeple. This program was not challenged at the time by members of congress as unconstitutional nor has it been challenged in the courts.

Precedent – Airport Improvement Program Soundproofing for Schools & Churches
The federal government provides funds administered by the F.A.A. for a program under which houses of worship as well as schools, including religious schools, located near airports are fitted with soundproofing materials in their physical structure. This program was most recently reauthorized under the “Air 21” legislation. As recently as this year, $44.5 million was granted to 32 schools in New York and New Jersey alone – including more than $9 million to religious schools.

Precedent – Availability of Federal Disaster Relief Funds from FEMA
In 2002, the Bush Administration issued regulations clarifying that religious institutions which have suffered damage in a natural disaster are eligible for receiving federal disaster relief funds administered by FEMA on the same, religion-neutral terms as other afflicted properties. The legal basis for this clarification was set forth in a memorandum published by the Justice Department’s Office of Legal Counsel. This result was strongly supported by Senators Murray and Cantwell and House members of the Washington congressional delegation.

Precedent – Historic Preservation Grants Administered by Dept. of Interior
In 2003, the Bush Administration issued regulations clarifying that historically landmarked religious structures are eligible to receive government grants administered by the Department of Interior for the maintenance of the “secular” aspects of their structure (such as windows, doors, structural support) on the same, religion-neutral terms as secular landmarks. The legal basis for this clarification was set forth in a memorandum published by the Justice Department’s Office of Legal Counsel. Under this program, grants have been already awarded many eligible landmarks of a religious character including the Old North Church in Boston, Touro Synagogue in Rhode Island and other sites around America.

What S.2275 has in common with each of these precedents, is that while the federal government may be providing financial assistance to a religious institution, this assistance cannot be perceived as the government’s “establishment” of religion as proscribed by the First Amendment. In each of these cases, the government aid is not being directed at religious institutions, but these institutions are qualifying for the aid on the basis of criteria which have nothing to do with religion. This approach is consistent with the current jurisprudence of the U.S. Supreme Court on these matters.

Moreover, in the cases of the soundproofing program and the historic preservation program, the aid is specifically formatted so as to be utilized only for secular purposes, even by a religious entity. This is the case in S.2275 where the legislation makes clear that the government’s aid is solely for the purpose of upgrading the physical security of a qualifying institution – secular or sacred.

Talking Points Specifically on Church-State Jurisprudence

5. Ever since Everson v Board of Education, 330 U.S. 1, 17 (1947), it has been authoritatively settled that providing “ordinary police” protection to religious institutions does not violate the Establishment Clause. Rejecting the dissents’ claim that government payments for bus transportation made parochial schools more attractive to students (and hence the aid was unconstitutional aid to religion) the Court wrote:
“Similarly, parents might be reluctant to permit their children to attend schools that the state had cut off from such general government services as ordinary police and fire protection, connections for sewage disposal, and public highways and sidewalks.”
No Justice of the Court has ever challenged this conclusion, and no earlier line of authority suggests otherwise.

We should recognize, that in this post-Sept. 11 world, “ordinary police protection” must include efforts to upgrade the physical security of likely terrorist targets – including religious institutions of a class that the terrorists themselves have stated they are targeting.

6. Opponents will cite the case of Tilton v Richardson, 403 U.S. 672 (1971). This was a challenge to a federal program that gave grants to colleges to build secular use facilities such as libraries, language laboratories, or classrooms. By statute, no funds could be given to buildings used even partially for religious purposes. However, the limitation on religious uses expired after 20 years.

A majority of the Court upheld the program. For present purposes, what is important is that the Court unanimously struck the provision limiting the ban on religious uses to 20 years. Tilton appears to stand for the proposition that the government may not contribute financially to the construction of buildings used for religious worship or instruction. That reading of Tilton would be an obstacle to direct financial grants to improve the physical structure of religious institutions such as houses of worship.

However, while Tilton has not, in formal terms been overruled, much of its rationale has been undercut by more recent Supreme Court rulings. Tilton represents a view of the Constitution that holds that the First Amendment prohibits the funding religious worship and instruction no matter what funding mechanism is used. Today, however, the Supreme Court insists that the funding mechanism is determinative. Where the aid is itself secular (i.e., the government is not providing Bibles), and the criteria for directing the funds are neutral (i.e., a statute gives religious beneficiaries no preference in obtaining funds), the Court will find no Establishment Clause violation. Zelman v Simmons-Harris, 536 U.S. 639 (2002); Mitchell v Helms, 530 U.S. 793 (2000).

These criteria are met in S.2275.
7. Opponents will cite the case of Committee for Public Educ. v. Nyquist, 413 U.S. 756 (1973), which imposed certain restrictions on the government’s provision of construction, maintenance, and repair aid to properties used by religious educational institutions. In light of the Court’s more recent decisions mentioned above, Nyquist may be distinguished from S.2275 as well. The program reviewed in Nyquist was specifically directed at religious schools; the program to be created by S.2275 will apply to a much broader class of institutions – all non-profits of all kinds.
Accordingly, the program under S.2275 can fairly be said to “’encircle[] a class so broad that it can be fairly concluded that religious institutions could be thought to fall within the natural perimeter.’” Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 17 (1989) (plurality opinion) (quoting Walz v. Tax Comm’n, 397 U.S. 664, 696 (1970) (Harlan, J.)). As the Court explained in Widmar v. Vincent, 454 U.S. 263, 274 (1981), “[t]he provision of benefits to so broad a spectrum of groups is an important index of secular effect.”

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1. It would be inappropriate to exclude religious non-profits from this security enhancement program, especially as we have seen entities such as synagogues subjected to deadly terrorist attacks overseas in recent months.

2. Further information about this program can be found at . It was cited, along with the Church Arson Prevention program, by Rep. Nadler in the House Judiciary Committee’s consideration of this legislation.

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5. See Zelman v. Simmons, 539 U.S. 639 (2992); Mitchell v. Helms, 530 U.S. 793 (2002); Agostini v. Felton, 521 U.S. 203 (1997).

6. See, also id. at 25 (Jackson, J., dissenting) (“Neither the fireman nor the policeman has to ask before he renders aid, ‘Is this man or building identified with the Catholic Church?’”)

7. Accord Zobrest v. Catalina Hills Sch. Dist., 509 U.S. 1, 8 (1993) (“we have consistently held that government programs that neutrally provide benefits to a broad class of citizens defined without reference to religion are not readily subject to an Establishment Clause challenge”).