Letter to the House Urging Opposition to H.R. 7, the "Community Solutions Act of 2001"

RE: OPPOSE HR 7, the "Community Solutions Act of 2001"

Dear Representative:

We are writing to urge you to oppose passage of HR 7, the "Community Solutions Act of 2001" unless Title II, which expands Charitable Choice (government funding of religion), is removed or significant changes are made. The limited changes adopted by the Judiciary Committee do little to resolve the constitutional and civil rights problems inherent in this provision. In some instances, the proposed changes have created more harm. The Charitable Choice provisions in this bill remain in conflict with the Establishment Clause of the First Amendment and would still undermine nearly sixty years of federal civil rights protections against most uses of federal money by persons engaged in employment discrimination based on religion.

Despite the White House spin, the changes made to this bill are not representative of a compromise. They were not negotiated with committee Democrats, mainline churches that have expressed concerns with the legislation, the Coalition Against Religious Discrimination, or with the Leadership Conference on Civil Rights, which has denounced the discriminatory aspects of this legislation. Instead, for the most part, these changes, and in many cases, lack of changes, are harmful, counterproductive, and do little to change or address the issues even the President said he was committed to addressing. This leaves one to wonder if the "drama of negotiations" over the last month was all about politics and spin instead of substance. We urge you to oppose Title II of HR 7, and the entire bill if Title II is not deleted for these and the following reasons:

Government Funded Employment Discrimination Still Permissible

Last week the Washington Post reported that the White House promised to issue a new regulation that would effectively permit the Salvation Army and other government funded charities to discriminate based on sexual orientation in hiring. While the administration has committed not to issue new regulations allowing discrimination against employees on the basis of their sexual orientation, H.R.7 would likely preempt all state and local civil rights laws anyway. As a result the Salvation Army would obtain the ability to discriminate without any new regulation. Moreover, under H.R. 7 the Salvation Army and other religious organizations will be able to discriminate based on religion.

The White House has attempted to address the employment discrimination problem in HR 7 by removing language that would allow religious organizations to require beneficiaries to "adhere to the religious beliefs and practices of the organization". However, removing the "religious practices" language does not change the fundamental civil rights problem with this provision. HR 7 would still put the government in the business of funding discrimination. The section provides that religious organizations may retain their right under Title VII of the Civil Rights Act of 1964 to discriminate in employment by preferring members of their own religion. In addition, the "Employment Practices" section of the new HR 7 now contains new language that attempts to override existing civil rights protections in the underlying programs if those protections do not provide the same level of autonomy religious organizations would receive under the Title VII exemption.

Religious organizations that receive federal grants should be required to adhere to the same safeguards that apply to every other government contractor or grantee.

Allowing federal funds to go to persons who discriminate based on religion undermines core civil rights protections that date back to President Franklin Delano Roosevelt. Although current law allows religious organizations to use their own private money to prefer members of their own religion, they generally cannot use federal funds to discriminate. Congress and the Executive Branch have further extended the prohibition on federally funded religious discrimination by adding statutes and regulations affecting a wide range of federal contract and grants programs. For sixty years, the basic principle has been that the federal government should not be financing religious discrimination against others.

Moreover, because at least some courts have allowed religious organizations to use their exemption from Title VII's prohibition against religious discrimination as a basis for requiring adherence to the religion's teachings and tenets, the potential scope of permissible discrimination remains very broad. Therefore, removing the "religious practices" language alone may have little effect on the discriminatory impact of this provision. The "real life" impact this could have on individuals' lives cannot be understated. If HR 7 is enacted with Title II in place, applicants for jobs with federally funded religious organizations may have to answer such interview questions as: What is your religion? Are you married or divorced? Was your marriage annulled? Is your spouse the same race as you? Are you pregnant? HIV-positive? What does your church teach about sexual orientation? Are you willing to work only with members of your own sex? A wrong answer could mean no job.

Such questions have no place now in the federally funded workplace. However, passage of this provision could make such questions commonplace for religious organizations funded under the act. And discrimination will be the new rule.

Government Funding of Religion Still Permissible

The White House did not address a fundamental problem with HR 7. The bill still allows federal funds to flow directly to religious organizations and is still in direct violation of the Establishment Clause. Although the Supreme Court has allowed religiously affiliated organizations to provide government-funded services in a secular manner, it has never allowed religious institutions to receive direct government aid. In defiance of that standard, Title II of HR 7 would mandate that federal, state, and local governments award federally funded contracts to any religious organization, on the same basis as any other organization, without "impairing the religious character of the organizations." Given that the bill as reported includes no changes to address this problem, HR 7 still limits the ability of a State to even question whether or not it will be funding a sectarian or secular program.

Adequate Protections for Beneficiaries and Employees Still Missing

As amended, HR 7 still reads, "A religious organization that provides assistance?shall maintain its independence from Federal, State, and local governments, including such organization's control over the definition, development, practice and expression of its religious beliefs." Additionally, the bill limits the ability of the State to evaluate the "religious character" of a religious organization in determining if the organization is capable of providing secular services. This language severely limits the government's ability to protect the constitutional rights of beneficiaries and to evaluate program content. Moreover, it invites religious organizations receiving taxpayer dollars to foist their religious beliefs on employees and beneficiaries.

Additionally, the bill's only attempt to address this deficiency is to require that a certificate be signed by the religious organizations that says they understand what they should and shouldn't do. This is problematic and raises a couple of questions. One, is this acceptable oversight when we are protecting the constitutional rights of individuals in publicly funded programs? Two, how can grant administrators begin to explain to religious organizations what they can and can not do when the language they are committing to comply with is so poorly drafted and seems to be written to confuse rather than clarify?

Government Funded Coercion and Indoctrination into Religious Programs Still a Problem, and in Some Instances Much Worse

Title II of HR 7 still does not adequately protect beneficiaries from being coerced into religious activities. While the section states that no public funds may be used for "sectarian worship, instruction or proselytization," there is still no section of the bill clearly stating that a religious organization's private funds may not be used to proselytize or advance a sectarian message in that same program, or at the same time. As mentioned above, the only provision that attempts to address this issue is confusing and raises more questions than answers.

In other words, it is still unclear whether or not an individual could attend a drug treatment program in which the publicly funded employees refrain from proselytizing, but the privately-funded employees such as religious clergy-working alongside the publicly-funded employees-do engage in religious instruction. The same problem could occur with volunteers at a faith-based social service provider.

Secular Alternative To Religious Provider No Longer Required

A key protection of the bill as introduced was removed by the House Judiciary Committee at the request of the White House. Under Title II, it would no longer necessary for the State or locality to offer a secular alternative to beneficiaries who object to a religious provider. Moreover, if a beneficiary wishes to object to the government affording them a religious provider, their objection must be on religious grounds. We have consistently argued that requiring a secular alternative was necessary to protect the constitutional rights of beneficiaries.

Protections Against Discrimination in In-Direct Assistance Programs Removed and In-Direct Assistance Programs Dramatically Expanded

Another key protection has been stripped from the bill. The bill did have specific language protecting individuals from discrimination in these "voucherized" programs. However with the Administration's changes, it is no longer necessary for a religious provider that participates in these programs to refrain from discriminating against an individual in the program. The only restriction placed on the religious provider is that they cannot deny admission to the program based on religion or religious beliefs. However, once the individual is in, there are no limitations on any discriminatory practices that might be prevalent in the program.

Moreover, HR 7 now contains a provision that would allow a state's cabinet secretary to convert a grant or direct funding program into a voucherized program even if the underlying Federal program, as passed by Congress, does not provide for such conversion. The addition of this provision in combination with the removal of the protections against discrimination in "in-direct" aid programs effectively wipes out in many contexts the protections that proponents argue they have adopted. Any protections that might exist, as insufficient as they might be, only apply to grant and direct aid programs.

Entanglement issues still abound

HR 7 still permits using the use of tax payer money to fund religious organizations, without requiring them to establish separate 501 (c)(3) non-profit organizations. There have been no changes to the bill to address this fundamental problem. Title II of HR 7 still violates the First Amendment's prohibition against excessive government entanglement with religion and raises serious risks that religious organizations will use their exemption from federal civil rights laws to discriminate.

Conclusion

We recommend that you support all amendments that address these concerns. Moreover, if such amendments are not adopted or if Title II is not removed from the bill, we recommend that you oppose HR 7. Striking Title II would not affect any other initiatives in the bill. For example, although the true benefits are arguable, the legislation would still provide limited tax deductions and incentive programs for community based organizations, including churches. Nor would striking Title II affect the ability of religiously affiliated groups working in our communities to participate in federally funded programs. Catholic Charities, Lutheran Social Services, and United Jewish Communities, as well as countless other religiously-affiliated groups, receive federal funds and agree not to discriminate based on religion or any other protected characteristic. They play by the rules.

We urge you to support alternatives to Title II, such as giving more information to religious organizations that want to establish affiliates like Catholic Charities that can compete for federal grants, provided they comply with the same laws that bind all other grantees. If you support the HR 7, as modified by the Judiciary Committee, we believe that you are supporting government funded religion, employment discrimination, and would fail to vigilantly protect the Constitutional rights of our most vulnerable citizens.

Sincerely,

Laura W. Murphy
Director

Terri Schroeder
Legislative Representative