Faith-Based Solutions; What are the Legal Issues? — Testimony

Posted on June 6, 2001 In Blog

Director of Public Policy –
Union of Orthodox Jewish Congregations of America
June 6, 2001
United States Senate
Committee on the Judiciary
With regard to “Faith-Based Solutions; What are the Legal Issues?”


Thank you, Senator Leahy and Senator Hatch, for the opportunity to address this Committee today. My name is Nathan Diament and I am privileged to serve as the director of public policy for the Union of Orthodox Jewish Congregations of America. The UOJCA is a non-partisan organization in its second century of serving the traditional Jewish community, and is the largest Orthodox Jewish umbrella organization in the United States representing nearly 1,000 synagogues and their many members nationwide.

On behalf of the UOJCA, I come before you today to address two legal issues that are relevant to the effort to expand the already existing partnership between government and faith-based social service providers: the first issue is the Constitutional issue raised by the First Amendment’s religion clauses, the second issue relates to religious liberty protections contained in our nation’s civil rights statutes.

But before addressing the legal issues, I would like to suggest that we step back for a moment and appreciate the broader context of our conversation today. Since this nation’s founding, evaluating the role of religion in our society’s public life has been part of our national conversation. But in recent months, this issue has been re-engaged with new vigor and prominence. Last year’s nomination of an Orthodox Jew to a national ticket put the discussion back on the front page. This year’s creation of the White House Office of Faith-Based & Community Initiatives has served as a catalyst for continuing this national discussion. The fact that we are having this discussion is in itself a wonderful thing for our democratic society.

Just as important is the fact that we are having a national discussion about finding new ways to address our social welfare challenges, particularly those confronting lower income populations. To have President Johnson’s declaration of a war on poverty cited once again in public addresses appreciatively, rather than derisively is a welcome development.

One more word of introduction, I believe is critical. It is the case that the Bush Administration’s focus on faith-based initiatives has given this policy issue a new degree of attention. But I respectfully remind you that this is not a new initiative. It received bipartisan support in the U.S. Senate and was signed into law by President Clinton on four occasions since 1996. Moreover, it was one of the few public policy initiatives that enjoyed support during the last presidential campaign from both parties’ presidential candidates.

In a major address to the Salvation Army, it was candidate Al Gore who stated: “The men and women who work in faith…based organizations are driven by their spiritual commitment…they have sustained the drug addicted, the mentally ill, the homeless; they have trained them, educated them, cared for them…most of all they have done what government can never do…they have loved them.” Mr. Gore went on to propose what he called a “New Partnership” under which the “charitable choice” concept would be expanded. He stated: “As long as there is always a secular alternative for anyone who wants one, and as long as no one is required to participate in religious observances as a condition for receiving services, faith-based organizations can provide jobs and job training, counseling and mentoring, food and basic medical care. They can do so with public funds – and without having to alter the religious character that is so often the key to their effectiveness.”

I raise this today not to minimize in the least the commitment of President Bush and his Administration to this effort which is well known, but to remind you that, to date, “charitable choice” initiatives have been bipartisan initiatives – just as they are in Senate Bill 304, which enjoys bipartisan sponsorship in this Committee. The speeches delivered by Mr. Bush and Mr. Gore that I have appended to my testimony clearly reflect their common commitment to this cause.

The fact that this initiative is now receiving greater attention should not be the cause for baser partisanship. The faith-based initiative does seem to have become a political Rorschach test, with some interest groups projecting their worst fears upon it. But the fact that this initiative raises complex and critical questions should give rise to careful and reasoned discussion – as we have engaged in today – rather than overheated fear-mongering.

Social Service Grants and the Establishment Clause

America’s synagogues, churches and other faith-based charities already play an important role in addressing many social challenges – through soup kitchens and literacy programs, clothing drives and job skills training, our faith communities remain the “little platoons” of our civilized society. My organization believes that these institutions can play an even larger and more beneficial role if they are supported in that effort.

We at the UOJCA do not suggest, as some might, that every faith-based social service provider will do a better job than a secular or government agency. Each of these agencies are programmed and staffed by real people – some will do better than others. We do not assert that every person in need will best be served by a faith-based provider – some will, some won’t; we’ve long ago realized that “one-size-fits-all” approaches do not work in most contexts – we need H.U.D. and Habitat for Humanity, H.H.S. and the Hebrew Home for the Aged. Moreover, we do not believe that including faith-based providers in the partnerships that government forms should be an excuse for letting the government shirk its commitment to devote an appropriate level of financial and human resources directly to addressing social needs. But we do believe that if the government decides not to go it alone, but to invite partners from the private and public interest sectors in tackling social welfare challenges, then the government ought not say to one class of agencies – “you may not be our partner because you are religious.”

We submit that the Constitution’s Establishment Clause stands for a simple proposition: that the government may not favor one religion over others, or religion over non-religion. But it does not stand for the proposition that government must favor the secular over the sacred. The Establishment Clause, as the Supreme Court has said, demands neutrality toward religion, not hostility.

Neutrality, I submit to you, means that in a grant program, government must be “faith-blind,” if you will. Government ought to establish grant criteria that have nothing to do with whether prospective grantees are religious or secular, but simply whether they have the capacity to perform the service and obtain the results the government seeks to achieve through the grant. That is the essence of what the Establishment Clause demands in this context.

Support for this neutrality-centered view can be found in many Supreme Court precedents the most recent of which is Mitchell v. Helms, decided just one year ago. In Helms, six of the nine justices came down squarely on the side of the neutrality view of the Establishment Clause. The issue before the Court was the constitutionality of a federal grant program which allows local education agencies to use federal funds for the purchase of supplementary educational materials, including textbooks and computers, for schools within their jurisdiction. Because the aid was also made available to parochial schools within the jurisdiction, it was challenged as a violation of the Establishment Clause. The Court rejected this challenge.

Justices Thomas, Rhenquist, Kennedy and Scalia rejected the challenge on the basis of a neutrality-centered understanding of the Establishment Clause without any qualifications. For these justices, so long as secular government aid is provided to religious institutions on the basis of religion-neutral criteria it does not violate the Establishment Clause, and the constitutionality of currently enacted and pending charitable choice laws is unquestionable.

Justice O’Connor, joined by Justice Breyer, also invoked the principle of neutrality, but with qualifications. Inasmuch as this concurrence was essential to the Court’s holding, it can be said that it is the O’Connor opinion that is controlling. Working with the framework she developed previously in Agostini v. Felton, Justice O’Connor determined that the program at issue did not violate the Establishment Clause because it furthered a secular purpose, did not have the primary effect of advancing religion, and did not raise the likelihood that an “objective observer” would believe the program was a governmental endorsement of a particular religion.

It is important to note that, as part of this analysis, Justice O’Connor, like the Helms plurality, explicitly rejected the precedents of Meek v. Pittinger and Wolman v. Walter, which had held even the capability for (as opposed to the actual) diversion of government aid to religious purposes to be sufficient grounds to render an otherwise neutral aid program an Establishment Clause violation. Justice O’Connor embraced this position even after distancing herself from what she characterized as the “plurality’s conclusion that actual diversion of government aid to religious indoctrination is consistent with the Establishment Clause.” Finally, Justice O’Connor stressed that the aid provided under the education grant program was “secular, neutral and non-ideological,” supplemented funds from private sources, and was expressly prohibited from being used for religious instruction purposes.

Taking all of these considerations together, it is possible to construct a regime under which faith-based organizations may receive government social service grants in a manner consistent with the latest interpretation of the Establishment Clause. This regime is evidenced in the previously enacted charitable choice laws and in your bill, S.304. The eligibility criteria for receiving a grant are religion neutral. The grant program serves the secular purpose of providing social welfare services to needy individuals. The grant funds are expressly prohibited from being “expended for sectarian worship, instruction or proselytization.” And Justice O’Connor’s sophisticated “objective observer” would not believe that government support for the faith-based provider under this legislation constituted the endorsement of the particular religion. Moreover, the bill’s accounting and auditing requirements are a safeguard against the diversion of funds for religious purposes, as well as an appropriate means of ensuring that public funds are expended for their specifically intended programmatic purposes.

Free Exercise of Religion Considerations; For Program Beneficiaries

There are other safeguards in charitable choice laws that are not necessitated by the Establishment Clause, but by the Constitution’s Free Exercise Clause – a feature of the First Amendment that ought to carry equal weight to the Establishment Clause but, for a variety of reasons, often seems forgotten – even by the Supreme Court.

As members of a minority religion in this country, we in the Orthodox Jewish community are terribly sensitive to the issue of religious coercion in general, and certainly in situations where government support, albeit indirect, is involved. We believe government should bolster the “first freedom” of religious liberty at every opportunity. Thus, we would insist that there be adequate safeguards to prevent any eligible beneficiary from being religiously coerced by a government-supported service provider. We believe that a requirement that each beneficiary be entitled to a readily accessible alternative service program and that each beneficiary be put on specific notice that they are entitled to such an alternative is the proper method for dealing with this issue. Moreover, as a condition for receiving federal assistance, faith providers must agree not to refuse to serve an eligible beneficiary on the basis of their religion or their refusal to hold a particular religious belief. These safeguards are contained in S.304.

Free Exercise of Religion Considerations; For Faith-Based Providers

There are also critical religious liberty considerations with regard to the protections afforded to religious organizations by the Constitution and federal civil rights laws. As you are already aware, the one that has received considerable attention from critics of the faith-based initiative is the thirty-seven year old federal law permitting religious organizations to hire employees on the basis of religion. A few basic points must be made with regard to this argument which, I believe, will set the record straight and refute the accusation that suggests that all American houses of worship are, in fact, houses of bigotry.

As the members of this Committee are well aware, the Civil Rights Act of 1964 is the great bulwark against objectionable acts of discrimination and Title VII of that Act bans discrimination in employment on the basis of race, ethnicity, gender, religion and national origin. It was the very same architects of modern civil rights law who created a narrow exemption in the 1964 Act permitting churches, synagogues and all other religious organizations to make hiring decisions on the basis of religion.

It would be absurd, to say the least, to suggest that a Catholic parish could be subjected to a federal lawsuit if it refused to hire a Jew for its pulpit. In 1972, still the heyday of civil rights reforms, Congress expanded the statutory exemption to apply to virtually all employees of religious institutions, whether they serve in clergy positions or not. The Free Exercise Clause demands this broad protection, and in 1987, the Supreme Court unanimously upheld the Title VII exemption as constitutional.

This well-established law has now become a central feature of the opposition to charitable choice; so much so that the interest groups who have joined together to fight charitable choice over the last few years have called themselves the “Coalition Against Religious Discrimination” and decry the fact that this initiative will “turn back the clock on civil rights.”

In fact, what is happening here is savvy political gamesmanship, not substantive argument. These very same opponents have lost their argument for the strictest view of church-state separation in the courts and in Congress. After all, the charitable choice laws that I described earlier received bipartisan support in the face of their protestations. Thus, they have cast about for a more potent political argument, and have found it in invoking the evils of discrimination – something all Americans rightly oppose.

But the assumption underlying the opponents’ assertion is that faith-based hiring by institutions of faith is equal in nature to every other despicable act of discrimination in all other contexts. This is simply not true.
In fact, in the incredibly diverse and fluid society that is America 2001, religious groups are increasingly open and reflective of that diversity. There are now black Jews, Asian Evangelicals and white Muslims and these trends will only increase. This is because, at their core, religious groups are supposed to care not about where you come from or what you look like, only what you believe. Religious institutions are thus compelled to ignore a person’s heredity and champion his or her more transcendent characteristics.

Those who appreciate the role of religious institutions in America should resist the easy equation the opponents assert, for its implications are dangerous indeed. After all, a defining element of the civil rights era was a commitment to root out invidious forms of discrimination not only in public institutions, but in the private sector – at lunch counters, in motel rooms and on bus lines. If faith institutions’ hiring practices are so terribly wrong, are we not obligated to oppose them however we can irrespective of whether they receive federal funds? If, as the critics suggest, your church and my synagogue are such bigoted institutions, why do we offer them the benefit of tax-exempt status? Why do we afford their supporters tax deductions for their contributions? Why do we hallow their role in society as we do?

There are other arguments to be made against the faith-based initiative over which we may reasonably differ. Some people may hold fast to a vision of stricter separation of church and state — even in the face of Supreme Court decisions to the contrary, while others may believe that the best way to serve Americans in need is solely through government agencies. We ought to vigorously debate these points as we have at this hearing. But slandering our sacred institutions with the charge of bigotry is unacceptable and must be ruled out of bounds.

A second rejoinder, with regard to the specific goals of this policy initiative, is important as well. If the goal of charitable choice is to leverage the unique capacities of faith-based providers with government grants, to force them to dilute their religious character is the same as saying you don’t believe in the whole enterprise. The critics, obviously do not, but we believe that, carefully considered and properly structured, expanding the partnership between government and faith-based social service agencies is a critical component of a strategy to bring new solutions to America’s social welfare challenges.


At the end of the day, the debates surrounding the faith-based initiative come down to questions of cynicism versus hope. The cynics see a slippery slope down every path; some see deeply religious people as untrustworthy – incapable of following regulations and perpetually plotting to proselytize their neighbor, while others see every civil servant as a regulator lacking restraint just waiting to emasculate America’s religious institutions.

But if we set our minds — and our hearts — to it, we can find a way to be more hopeful. After all, what this is really about is bringing some new hope and some real help to people in need through a new avenue.