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TESTIMONY
by
NATHAN J. DIAMENT, Esq.
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?
UNION OF ORTHODOX JEWISH
CONGREGATIONS OF AMERICA
1640 RHODE ISLAND AVENUE, NW, WASHINGTON, DC 20036
TEL: 202-857-2770 FAX: 202-331-9161
Introduction
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.
Conclusion
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.
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