Today, Nathan Diament, director of public policy for the Union of Orthodox Jewish Congregations of America, testified before the U.S. Ways & Means Subcommittees on Human Resources and Select Revenue Measures in a hearing on the faith-based initiative legislation. The central legal issues discussed at the hearing were the initiative’s constitutionality under the First Amendment’s Establishment Clause and the rights of social service beneficiaries and providers under the Free Exercise Clause and civil rights statutes.

Prior to addressing the relevant legal issues, Mr. Diament sought to remind the Committee that “charitable choice” initiatives have been, to date, bipartisan initiatives; the four laws enacted since 1996 received bipartisan support and were signed by President Clinton. Diament cited a May,1999 speech by Al Gore to recall that the expansion of this initiative received support from both presidential candidates in last year’s election campaign. He suggested to the senators that just because “this initiative is now receiving greater attention should not be the cause for baser partisanship.”

With regard to the Establishment Clause, Diament stated:

“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…means that in a grant program, government must be “faith-blind…” 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.

With regard to protections for beneficiaries, Diament stated:

“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.”

With regard to protections for faith-based service providers, Diament stated:

“it was the…architects of modern civil rights law who created a narrow exemption in the Civil Rights Act of 1964 permitting churches, synagogues and all other religious organizations to make hiring decisions on the basis of religion… This well-established law has now become a central feature of the opposition to charitable choice… what is happening here is savvy political gamesmanship, not substantive argument… at their core, religious groups are supposed to care not about where you come from or what you look like, only what you believe…If, as the critics suggest, your church and my synagogue are such bigoted institutions, 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. But slandering our sacred institutions with the charge of bigotry is unacceptable and must be ruled out of bounds.”