Charitable Choice to House

Faith Based Initiatives bill, being debated today, contains recent changes that make it more threatening than ever to church-state separation

Answers to the claim that the Clinton administration supported "charitable choice"

An update from the Presbyterian Washington Office [7-18-01]

This analysis deals with a number of points:

New version of H.R. 7 contains dangerous new
loophole to attack the social safety net

Employment discrimination still allowed

No more requirement of a secular alternative

H.R. 7 still allows lawsuits against state
and local government

Judiciary Committee rejects protection of
minority religions

Check out one example of Muslim concerns.

The truth about the Clinton administration
and "charitable choice"

New version of H.R. 7 contains dangerous new loophole to attack the social safety net

The new H.R. 7, being debated today, contains a provision that allows a Cabinet Secretary to unilaterally convert a grant or direct funding program to a voucherized program, even if the underlying authorization does not permit voucherized assistance. This unprecedented move would allow longstanding grant programs to be converted to voucherized assistance without Congressional approval. This radical step was taken to allow religious organizations that want to proselytize beneficiaries in a program to do so. The new H.R. 7 accomplishes this by allowing religious discrimination against a beneficiary during the program, when the government funding comes in the form of a voucher, certificate or other forms of indirect aid. The original version of H.R. 7 did not allow this form of heinous discrimination. Under the new H.R. 7, a person seeking help through a voucher could be told, once they have been admitted to the program, that they must convert to another religion in order to receive the government-funded services.

Employment discrimination still allowed

Although the backers of "Charitable Choice" now assert that programs receiving government dollars must be nonreligious in nature, the bill explicitly permits organizations to discriminate in employment based on religion and religious tenets for staff positions in government-funded programs. At the Judiciary markup, when backers of "Charitable Choice" were asked to explain why it is necessary to turn people away based on their religion for government-funded staff positions to deliver non-religious services, they had no meaningful explanation.

In addition, although the Chairman of the Judiciary Committee claims that the new version of HR 7 takes out explicit language allowing for religious practices discrimination, the new version actually leaves veiled language intact that would allow for such employment discrimination based on religious practices, tenets or teachings.

Even with the deletion of the overt religious practices language, the new H.R. 7 still extends the Title VII exemption (allowing religious-based employment discrimination) to taxpayer-funded programs under "Charitable Choice." If this exemption is extended in this way, it will result in the same religious practices discrimination that is supposedly being stricken. The courts have recognized that institutions eligible for this exemption may discriminate in employment based on religious 93tenets and teachings, in addition to simply refusing to hire someone of a certain religion. In other words, even under this changed H.R. 7, a publicly funded program could discriminate in employment against an applicant or employee if they are: unmarried and pregnant; divorced; gay or lesbian; or engage in any other activity that violates the tenets and teachings of the groups religion.

In addition, the Employment Practices section of the revised H.R. 7 contains incredibly broad, new language that would override other civil rights protections in the Federal laws governing social service programs. For example, if the statute underlying a Federal grant program requires that grantees not discriminate in hiring based on religion, H.R. 7 would override that rule and allow for such discrimination in the Federally funded program.

No more requirement of a secular alternative

The new H.R. 7 deletes the requirement that a secular alternative always be available (called a nonreligious alternative in the original bill.) Instead, the bill now would permit people who object to a certain group's religious character to be steered towards another religious group that is unobjectionable to the person seeking help. Apparently, only if all religious groups are objectionable to the beneficiary, does the bill suggest the need for a truly secular option. An amendment was offered at markup to restore the secular alternative, but it was defeated by a party-line vote.

H.R. 7 still allows lawsuits against state and local government

Despite promises made to the Conference of Mayors by main sponsor J.C. Watts (R-OK), the new H.R. 7 still authorizes new lawsuits against city, county and State governments and their officials, available for religious organizations who believe that they were denied funding opportunities because of their religious character. Of course, this blatantly ignores current Supreme Court case law that prohibits the direct government funding of programs that cannot separate religious activity from the delivery of social services (which the Bush Justice Department even acknowledges.) This will put state and local agencies in a legal Catch-22 whatever decision a state agency makes about directly funding a house of worship directly will result in a wave of litigation. This wave of litigation will bog down the grant process and result in fewer people receiving quality services.

Judiciary Committee rejects protection of minority religions

During markup of the new H.R. 7, one Judiciary Committee backer of Charitable Choice boasted that he was pleased to support the measure because no weird cults would be able to get funding under the legislation. However, one person's cult is another person's faith.

To ensure protection of minority religions in the grant process, an amendment was offered to protect religious groups against discrimination because of their religious character (the bill now only protects against discrimination against a group because it is religious or has a religious character. Under the current bill there is no remedy if a minority religion believes it was discriminated against in favor of the more popular religion, even though the minority faith was more qualified to carry out the services. The amendment to protect minority faiths from discrimination was defeated by the backers of Charitable Choice.

The truth about the Clinton administration and "charitable choice"

Backers of "Charitable Choice" continuously state that President Clinton signed bills with "Charitable Choice" during his administration. But what they fail to mention is that "Charitable Choice" was included in Omnibus bills, and the Clinton Administration determined that "Charitable Choice" would be unconstitutional in application. In signing statements of bills that contained "Charitable Choice," President Clinton made clear that Charitable Choice would not be implemented according to the authors intent. For example, the following is from President Clinton's signing statement on the Community Services Block Grant (CSBG) in October 1998:

"The Department of Justice advises, however, that the provision that allows religiously affiliated organizations to be providers under CSBG would be unconstitutional if and to the extent it were construed to permit governmental funding of pervasively sectarian organizations, as that term has been defined by the courts. Accordingly, I construe the Act as forbidding the funding of pervasively sectarian organizations and as permitting Federal, State, and local governments involved in disbursing CSBG funds to take into account the structure and operations of a religious organization in determining whether such an organization is pervasively sectarian."

The Clinton Administration did not promulgate any new rules or regulation for Charitable Choice, and continued to operate programs under Constitutional principles the rules that have allowed religiously-affiliated groups, such as Catholic Charities, Lutheran Services, United Jewish Communities, and thousands of others, to participate in government programs for decades, without discriminating in employment, proselytizing beneficiaries and subjecting state and local government to endless litigation.