ACTION ALERT: Charitable Choice Initiatives Pending in Congress

SENT BY FAX AND E-MAIL

July 17, 2000

TO:	JCPA Member Agencies
FROM:	Guila Franklin Siegel, Associate Director, Domestic Concerns Reva Price, Washington Representative
RE:	Charitable Choice Initiatives Pending in Congress

Public funding of social services provided by pervasively-sectarian organizations continues to be a hot-button issue, both in the presidential campaign and in the halls of Congress. There are currently 10 federal bills pending that include charitable choice provisions, all of which lack essential safeguards to prevent First Amendment violations and protect against federally-funded religious discrimination.

JCPA Policy: The recently released JCPA 2000-2001 Agenda for Public Affairs states the JCPA’s position with respect to charitable choice initiatives as follows: "The JCPA reaffirms its opposition to any [charitable choice] legislation that does not contain meaningful and effective First Amendment safeguards such as those that prevent proselytization, coercion or indoctrination and that safeguard clients and service provider employees against religiously-based discrimination."

Recommended Action: Contact your Senators and Representatives and urge them to oppose "charitable choice" as it is found in numerous pieces of legislation currently on the Congressional agenda. Explain that these provisions will violate the religious liberties of program beneficiaries and employees of service providers and entangle government in the affairs of churches, synagogues and other houses of worship.

Attached for your information are the following materials:

A summary of the charitable choice initiatives currently pending in Congress, prepared by Americans United for Separation of Church and State;

Talking points; and,

A helpful background article from CQ Weekly.

Please feel free to contact either of us should you have any questions or require additional information.

CHARITABLE CHOICE

What is the JCPA's policy with respect to charitable choice and why?

JCPA Policy: The JCPA 2000-2001 Agenda for Public Affairs states the JCPA’s position with respect to charitable choice initiatives as follows: "The JCPA reaffirms its opposition to any [charitable choice] legislation that does not contain meaningful and effective First Amendment safeguards such as those that prevent proselytization, coercion or indoctrination and that safeguard clients and service provider employees against religiously-based discrimination."

Charitable choice as provided for in the Ashcroft Amendment and in other pending bills violates church/state separation as mandated by the First Amendment, by creating situations in which there is the potential for religious coercion or indoctrination because:

clients of social service programs may receive services in a pervasively sectarian environment, replete with religious symbols and literature;

clients may receive services from religious workers whose primary mission may be to promote religious belief and practice;

service providers may not be mandated to advise clients of their right to request a nonsectarian service provider; and,

alternative non-sectarian service providers may be unavailable.

Current charitable choice proposals would allow pervasively sectarian government contractors to discriminate in hiring for government-funded programs based upon religious belief.

If houses of worship are allowed to serve as government contractors, they will inevitably have to subject themselves to government regulation and scrutiny. Such government involvement with the daily operation of a house of worship could compromise that institution's religious autonomy.

This type of involvement could result in unconstitutional entanglement of government with religion; and,

could result in institutions "'watering down" their religious message in order to comport with federal restrictions, thereby removing the very components of their programs that are believed by many to be crucial to their success in providing social services.

Allowing houses of worship to compete for government contracts will necessarily increase competition among all service providers for scarce resources and will create intensified competition among different religious groups.

Charitable choice provisions could allow extremist religious groups that preach hatred, such as the Nation of Islam and Christian Identity churches, to compete on an equal basis for government contracts, thereby possibly resulting in the use of public funds to promote anti-Semitism, racism, and other harmful ideologies.

PENDING Federal Legislation Containing "Charitable Choice"

June 30, 2000

American Community Renewal Act:

The "American Community Renewal Act," H.R. 815, sponsored by Rep. Watts (R-OK) is intended to address economically depressed communities, but includes an enhanced version of "Charitable Choice" that could require substance abuse beneficiaries to "actively participate in religious practice, worship and instruction and to follow the rules of behavior that are religious in content or origin." On May 22, 2000 a deal was struck with the Administration to combine ACRA with the Administration's version of the bill, the "New Markets Initiative." "Charitable Choice" provisions are included in the agreement, though the language from Watts' bill will most likely be modified to look more like the language from Welfare Reform. The Senate version of the bill, S. 2779 does not require active participation in religious activities, but does propose civil rights entanglements as well as the abolition of licensing and certification requirements for substance abuse treatment professionals. Additionally, the 'Charitable Choice Expansion Act,' a bill intended to automatically add "Charitable Choice" onto every present and future public health or social service bill that receives federal funding, has been added onto S. 2779.

Adoption Awareness Act:The "Adoption Awareness Act of 1999" (S. 1382, H.R. 2511), sponsored by Sen. McCain (R-AZ) and Rep. DeMint (R-SC), includes "Charitable Choice" provisions. Both bills were introduced in mid-July and the Senate bill has been referred to the Committee on Health, Education, Labor and Pensions, while the House bill has been referred to the Commerce Committee. The House version of this bill was expected to be marked-up in March as a part of the Child Health Act of 2000, H.R. 4365, but in the end was not included. Thus, "Charitable Choice" provisions have been removed for the time being, but with the caveat that they could be added back in at any time upon an agreement with the Administration on language. Due to the American Community Renewal Act/ New Markets Initiative agreement on May 22, 2000, "Charitable Choice" will likely be added back onto the H.R. 2511.

Child Support/Fatherhood: Rep. Nancy Johnson (R-CT) introduced H.R. 4469, a Child Support/Fatherhood bill on May 16, 2000. The bill contains the exact same "Charitable Choice" provisions as Johnson's previous fatherhood bill, The Fathers Count Act, H.R. 3073, with no less than 75 percent of the contracts intended to go to religious organizations. A House Human Resources Subcommittee hearing on the bill is scheduled for May 18, 2000.

Homeownership:On April 6, 2000 the House passed the "American Homeownership and Economic Opportunity Act," H.R. 1776, replete with "Charitable Choice" provisions. The bill is designed to provide municipal employees with homeownership incentives. "Charitable Choice" was not expected to be included on this bill, however Rep. Souder (R-IN) added "Charitable Choice" and the amendment passed 124 - 299. A similar bill will now be considered in the Senate.

Safe and Drug Free Schools:In mid-April the House Education and Workforce Committee finished its mark-up of Title IV (Safe And Drug-Free Schools and Communities) of the Elementary and Secondary Education Act of 1965 (ESEA) reauthorization. Title IV contains "Charitable Choice," which allows pervasively sectarian organizations to receive federal funds to conduct drug and violence prevention and education programs. Additionally, as a part of the reauthorization of ESEA, Rep. Souder (R-IN) was expected to add "Charitable Choice" to the General Provisions of the bill, thus applying "Charitable Choice" to every title of ESEA. Although this amendment was not added in Committee mark-up, it could still be added on the floor when the bill comes up for debate this spring.

Charitable Choice Expansion Act:The "Charitable Choice Expansion Act" (S. 1113), sponsored by Sen. Ashcroft (R-MO), was introduced on May 25, 1999. This bill would automatically apply "Charitable Choice" to every current and future public health and social service program that receives federal funds. The bill is pending in the Senate Committee on Governmental Affairs, however has been added onto the Senate version of the American Community Renewal Act, S. 2779.

Even Start:On February 16, 2000 the House Education and Workforce Committee considered the Literacy Involves Families Together Act (Even Start), H.R. 3222. The bill amends the Elementary and Secondary Education Act of 1965 to revise and reauthorize Even Start Family Literacy Programs. Rep. Souder (R-IN) added a "Charitable Choice" amendment to the bill, allowing faith-based organizations to receive federal tax funds to operate literacy programs. An effort was made by Rep. Scott (D-VA) to circumvent the employment discrimination based on religion that "Charitable Choice" would permit, but his amendment failed by a vote of 23-15. Even Start marks the first time "Charitable Choice" has been added to an education bill. Floor action is expected this spring.

Fathers Count Act:In the first session of the 106th Congress, Rep. Nancy Johnson (R-CT) and Rep. Ben Cardin (D-MD) introduced the "Fathers Count Act" (H.R. 3073) which included the "Charitable Choice" provisions. The "Fathers Count Act" would authorize the federal government to make "fatherhood grants" available to public and private entities for projects designed to promote marriage, successful parenting and to help fathers and their families avoid or leave cash welfare assistance. Additionally, the bill specifies that no less than 75 percent of the "fatherhood grants" in each fiscal year shall "be awarded to non-governmental (including faith-based) organizations." In short, "Charitable Choice" provisions have been included to allow faith-based organizations to receive the vast majority of the federal funding from this program. On November 11, 1999 the bill passed the House by a vote of 328-93. A companion bill, S. 1364 has been introduced in the Senate by Sen. Bayh (D-IN), and referred to the Committee on Finance. S. 1364 does not contain "Charitable Choice."

Juvenile Justice:A Juvenile Justice bill (S. 254), sponsored by Sen. Hatch (R-UT), includes the "Charitable Choice" language. The bill passed the Senate on May 20, 1999. The House passed its Juvenile Justice bill (H.R. 1501), on June 17, 1999, which also contains the same "Charitable Choice" language as the Senate bill. The House approved the "Charitable Choice" language by a separate vote of 364-83. The two bills are now awaiting reconciliation by the House and Senate in conference.

SAMHSA:The "Youth, Drug and Mental Health Services Act," SAMHSA, (S.976) was introduced by Sen. Frist (R-UT). The bill, which include "Charitable Choice" and could subject beneficiaries to religious exercise and proselytization, was approved by the Senate Health, Education, Labor and Pensions Committee on July 28, 1999. During committee consideration, Sen. Jack Reed (D-RI) offered an amendment to the bill which addressed the issue of employment discrimination, but unfortunately the amendment failed. The bill passed the Senate by unanimous consent on November 3, 1999, and is pending in the House Commerce Committee.

Faith Based Drug Treatment Enhancement Act:On January 21, 1999 the "Faith Based Drug Treatment Enhancement Act" (S. 289) was introduced by Sen. Abraham (R-MI). Characterized as non-discrimination toward religious organizations, the bill would allow faith-based organizations to require beneficiaries to "actively participate in religious practice, worship and instruction." The bill was referred to the Committee on Health, Education, Labor and Pensions.

CQ WEEKLY - SOCIAL POLICY

June 10, 2000

Page 1385

Funding of Faith-Based Groups Spurs New Civil Rights Debate

By David Nather, CQ Staff

If House GOP Conference Chairman J.C. Watts Jr. of Oklahoma has his way, Congress may offer federal funds to Freddie Garcia, the "Junkie Preacher."

Garcia is the ex-addict-turned-pastor who founded Victory Fellowship -- a Christian substance abuse program in San Antonio that puts addicts through a three-month, total-immersion program of chapel services and Bible studies. Its stated goal is to help clients kick their bad habits and establish "a personal relationship with Jesus Christ."

Garcia's church has opened 65 centers throughout Texas, New Mexico and California and in five foreign countries -- and has caught the eye of Watts and other Republicans. Victory Fellowship, Watts said in a June 5 interview, is a perfect model for the kinds of faith-based drug treatment programs that ought to qualify for federal support because their spiritual approach can be more complete and effective than traditional substance abuse efforts.

"They take a much more comprehensive approach to healing. They try to deal with the mental and physical and spiritual person," said Watts.

The faith-based approach has been gaining currency since the welfare overhaul of 1996 (PL 104-193), and President Clinton has accepted it as part of the "New Markets" anti-poverty package he worked out last month with House Speaker J. Dennis Hastert, R-Ill. If the House Ways and Means Committee marks up its provisions the week of June 12, as expected, the package could be on the House floor by the end of the month.

The approach's popularity is raising new concerns. Some lawmakers fear that giving taxpayers' money to the nation's churches, synagogues and mosques raises serious civil rights issues. They warn that religious organizations are already free to discriminate in their hiring practices because of an exemption in the Civil Rights Act of 1964 -- and that Congress could end up knocking another hole in the wall between church and state.

"The meaning is clear: It would not be illegal to practice religious bigotry," Rep. Robert C. Scott, D-Va., said in a June 6 interview.

"This is, I think, a hugely important issue that has been ignored by many members of Congress," Rep. Chet Edwards, D-Texas, said in a June 6 interview. "For the first time in this country's history, we would be saying that faith-based organizations could receive federal funds and then put up a sign saying no Jews, Catholics or Methodists need apply for a federally funded job."

Running on Faith

The debate could resonate on both Capitol Hill and the presidential campaign trail, as leaders of both parties abandon a longstanding resistance to public support for social services in a religious setting.

Both Texas Gov. George W. Bush, the presumptive Republican nominee, and Vice President Al Gore, the likely Democratic nominee, have called for new partnerships between government and faith-based organizations to attack social problems that government alone has been unable to solve.

Such partnerships are raising concerns that even their supporters say are legitimate: Should the government allow churches to hire and serve only those who agree with their religious views? Should the needy be required to attend prayer breakfasts or take communion to get the help they need? How many strings can be attached to government aid before sectarian groups will lose interest?

To Watts and other supporters, there are important practical benefits to the faith-based drug treatment efforts, and they believe the problems can be worked out. They say these programs -- by treating drug addiction in part as a spiritual problem and not just as a physical or mental illness -- have achieved a strong record of success and should not be disqualified from federal support simply because of their religious character.

The Victory Fellowship says its success rate in treating substance abusers runs from 60 to 80 percent.

"The wall of separation between church and state becomes too high when it's impossible to provide any encouragement or support to any of the positive activities the churches are doing," Jim Wallis, leader of Call to Renewal, an alliance of churches and faith-based organizations that fight poverty, said in a June 6 interview.

Charitable Choice

The debate marks an important turning point in the history of "charitable choice" -- giving government funds not just to groups with a religious affiliation, such as Catholic Charities, to provide social services, but to the houses of worship themselves.

The idea is to let them take public funds without having to strip out the religious art, icons and scriptures that are crucial to their sectarian character. That was never a problem with Catholic Charities, which receives federal funds to provide housing services and other social services but does not give clients an overt religious message. It is a problem, however, for groups like Victory Fellowship, where the religious message is the whole point of the social services they provide.

The welfare overhaul of 1996 allowed faith-based groups to receive federal funds for welfare-to-work programs. (1996 Almanac, p. 6-3)

Congress added a similar provision to the Community Services Block Grant when it reauthorized the program in 1998 (PL 105-285), opening the door to other faith-based anti-poverty efforts. (1998 Almanac, p. 9-23)

Now, several bills in Congress, including the anti-poverty package, would expand "charitable choice" to include everything from school violence prevention to literacy to assistance for low-income fathers. (Chart, p. 1384)

To critics such as Scott and Edwards, the potential consequences of charitable choice have never received a full airing because it has always been a side issue.

So far, the welfare bill has not resulted in a huge shift of public funds to faith-based organizations. The exact figures are anybody's guess because states are not required to report charitable choice expenditures to the federal government.

However, a nine-state study by the Center for Public Justice, a Christian policy research organization based in Annapolis, Md., found a "modest, though notable" impact -- 84 new financial relationships between government and social service providers since 1996, as well as 41 new collaborations that did not involve the use of public funds.

Stanley W. Carlson-Thies, the center's director of social policy studies, said the welfare bill's charitable choice program has been slow to take hold. If charitable choice is expanded to drug treatment programs, however, there could be "a fairly immediate takeup by some sophisticated organizations," he said in a June 6 interview.

The Civil Rights Problem

Critics' concerns go beyond the traditional arguments about the separation of church and state. Under most charitable choice proposals, including the original language of the American Community Renewal Act (HR 815) -- the Watts bill that served as the model for the New Markets drug treatment provision -- faith-based organizations would be able to require employees to adhere to their religious beliefs and practices.

That would expand their exemption from Title VII of the Civil Rights Act, which bans public and private employers from discriminating on the basis of race, color, religion, sex or national origin. Critics say such discrimination should not be federally funded.

The exemption already has allowed some faith-based organizations to set hiring and firing standards that would draw lawsuits in the private and nonprofit sectors.

According to the Congressional Research Service, courts have protected a Christian college that refused to hire a Jewish professor; a Catholic university that refused to hire a professor because it did not agree with her views on abortion; a Baptist university that would not allow a professor to teach because his theological views conflicted with the dean's views; and a Christian retirement home that fired a Muslim receptionist who insisted on wearing a head covering.

There have been no such legal challenges to religious groups that have gotten charitable choice funds under the welfare law. However, critics are watching a federal lawsuit in Kentucky they say raises the same issue of publicly funded discrimination. The Kentucky Baptist Homes for Children, a child-care agency that receives state funds, is being sued for firing a lesbian employee because her lifestyle was "inconsistent with [the ministry's] religious beliefs."

The ministry does not deny firing the employee because of her homosexuality, but insists that it was not a religious issue. "We just felt that it was not in the best interests of our children to be promoting that kind of lifestyle," Vickie Grassman, a spokeswoman for the Louisville-based ministry, said in a June 6 interview.

Watts said employment discrimination is "a legitimate concern," but he argued that zealots are likely to be screened out because they would have to win state certification before they could receive federal funds.

The issue is troubling enough to split members of the Congressional Black Caucus. Some, including Chairman James E. Clyburn, D-S.C., are drawn to the charitable choice proposal because church-based drug treatment programs have played an important role in African-American communities. Others, including Scott and Rep. John Lewis, D-Ga., the former Freedom Rider and civil rights leader, oppose it.

"It is not the role of our government to subsidize the spread of God's word," Lewis said in a June 1999 debate on the American Community Renewal Act on the House floor.

Some supporters of charitable choice do not pretend there is no danger of discrimination. They simply do not believe it is realistic to expect faith-based organizations to deny their religious preferences in order to qualify for federal funds.

"They shouldn't be barred from federal funds because they're a Christian organization and they like to hire Christians," Call to Renewal's Wallis said. "If they discriminate against hiring black people, that's a different case."

Source: CQ Weekly

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