BY FACSIMILE AND E-MAIL

Ms. Winnie Mitchell
Office of Policy, Planning and Budget
Substance Abuse and Mental Health Services Administration
U.S. Department of Health and Human Services
Washington, D.C.  

Re:       Comments on the Proposed Charitable Choice Regulations for the Substance Abuse Prevention and Treatment Block Grants, Projects for Assistance in Transition from Homelessness Formula Grants, and SAHMSA Discretionary Grants (RIN 0930-AA11)

Dear Ms. Mitchell:

The American Civil Liberties Union respectfully submits these comments urging the Secretary of Health and Human Services to revise the proposed rule implementing the charitable choice statutory provisions applicable to programs administered by the Substance Abuse and Mental Health Services Administration (""SAMHSA"").  As written, the proposed rule is inconsistent with constitutional requirements, misapplies the Religious Freedom Restoration Act, conflicts with positions that the United States has taken in arguing the importance of eradicating religious discrimination, and does not sufficiently detail the scope of constitutionally prohibited religious activities that must be excluded from federal programs.  Unless substantially revised, the proposed rule will likely result in SAMHSA, states, and grant recipients engaging in unconstitutional or otherwise illegal conduct.

The Proposed Rule Will Likely Result in Unconstitutional Employment Discrimination

In two ways, the proposed rule abets unconstitutional employment discrimination based on religion.  First, the proposed rule implements a statutory provision improperly allowing a religious organization receiving SAMHSA funds to retain its exemption from the provision in Title VII of the Civil Rights Act of 1964 generally prohibiting religious discrimination in employment.  Second, it uses an unprecedented interpretation of the Religious Freedom Restoration Act to circumvent a statutory prohibition on religious discrimination in SAMHSA programs.  Both positions are contrary to law, and will open the door to government-funded discrimination.  

Expansion of the Title VII Exemption:  Each of the employment practices provisions for the SAMHSA programs provides that ""the participation of a religious organization in, or its receipt of funds from, an applicable program does not affect that organization's exemption under 42 U.S.C. 2000e-1 regarding employment practices.""  The referenced section of the U.S. Code is a provision in Title VII of the Civil Rights Act of 1964 that permits religious organizations to prefer members of their own religion when making employment decisions.  Although the Supreme Court upheld the constitutionality of the religious organization exemption in Title VII, Corporation of Presiding Bishop v. Amos, 483 U.S. 327, 336-39 (1987), the Court did not consider whether a religious organization could discriminate based on religion when making employment decisions in programs that the government finances to provide governmental services.  

Several courts have considered whether a religious organization can retain its Title VII exemption after receipt of indirect federal funds, e.g., Siegel v. Truett-McConnell College, Inc., 13 F. Supp.2d 1335, 1344 (N.D. Ga. 1994) (clarifying that its decision permitting a religious university to invoke the Title VII exemption is because the government aid is directed to the students rather than the employer), but only one federal court has decided the constitutionality of retaining the Title VII exemption after receipt of direct federal funds, Dodge v. Salvation Army, 1989 WL 53857 (S.D. Miss. 1989).  In that unreported decision, the court held that the religious employer's claim of its Title VII exemption for a position ""substantially, if not exclusively"" funded with government money was unconstitutional because it had ""a primary effect of advancing religion and creating excessive government entanglement.""  Id.  The analysis applied by the court in Dodge should apply with equal force to the SAMHSA programs that would provide direct federal funds to religious organizations.

In addition to causing the Establishment Clause violation cited by the court in Dodge, the employment provisions in the proposed rule may also subject the government and any religious employer invoking the proposed rule to liability for violation of constitutional rights under the Free Exercise Clause and the Equal Protection Clause.  Although mere receipt of government funds is insufficient to trigger constitutional obligations on private persons, a close nexus between the government and the private person's activity can result in the courts treating the private person as a state actor.  Rendell-Baker v. Kohn, 457 U.S. 830 (1982).

It is beyond question that the government itself cannot prefer members of a particular religion to work in a SAMHSA-funded program.  The Equal Protection Clause subjects governments engaging in intentional discrimination on the basis of religion to strict scrutiny.  E.g., United States v. Batchelder, 442 U.S. 114, 125 n.9 (1979); City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976).  No government could itself engage in the religious discrimination in employment accommodated and encouraged by the proposed rule's employment provision.  Thus, the government would be in violation of the Free Exercise Clause and the Equal Protection Clause for knowingly funding religious discrimination.

Of course, a private organization is not subject to the requirements of the Free Exercise Clause and the Equal Protection Clause unless the organization is considered a state actor for a specific purpose.  West v. Atkins, 487 U.S. 42, 52 (1988).  The Supreme Court recently explained when there is a sufficient nexus between the government and the private person to find that the private person is a state actor for purposes of compliance with constitutional requirements on certain decisions made by participants in the government program:

[S]tate action may be found if, though only if, there is such a 'close nexus between the State and the challenged action' that seemingly private behavior 'may be fairly treated as that of the State itself.' . . . We have, for example, held that a challenged activity may be state action when it results from the State's exercise of 'coercive power,' when the state provides 'significant encouragement, either overt or covert,' or when a private actor operates as a 'willful participant in joint activity with the State or its agents' . . . . .

Brentwood Academy v. Tennessee Secondary School Athletic Association, 121 S. Ct. 924, (2001) (citations omitted).

The extraordinary role that the government has taken in accommodating, fostering, and encouraging religious organizations to discriminate based on religion when hiring for SAMHSA programs creates the nexus for constitutional duties to be imposed on the provider, in addition to the requirements already placed on government itself.  There is no doubt that HHS understands what it is doing in proposing the employment provision.  The supplementary information prefacing the proposed rule explains the employment provision as ""help[ing] enable faith-based groups to promote common values, a sense of community and unity of purpose, and shared experiences through service"" and as ""reflect[ing] the recognition that a religious organization may determine that, in order to define or carry out its mission, it is important that it be able to take its faith into account in making employment decisions.""  67 Fed. Reg. at 77351.  The clear intent of the proposed rule is to encourage certain providers receiving federal funds to discriminate based on religion.

The proposed rule's sections on employment practices are part of a growing pattern of congressional, presidential, and regulatory actions taken specifically for the purpose of accommodating, fostering, and encouraging federally-funded private organizations to discriminate in ways that would unquestionably be unconstitutional if engaged in by the federal government itself.  The authorizing statute, and the proposed rule implementing the statute, provide that, ""[t]he participation of a religious organization in, or its receipt of funds from, an applicable program does not affect that organization's exemption provided under 42 U.S.C. 2000e-1 regarding employment practices.""  The proposed rule was issued on the same day that President Bush signed Executive Order 13279, which amended an earlier executive order, which had provided more than 60 years of protection against discrimination based on religion by federal contractors.  The Bush order provides an exemption for religious organizations contracting with the government to discriminate in employment based on religion.  In addition, the federal government is simultaneously proposing to allow religious organizations to discriminate based on religion in employment for federal programs involving substance abuse counseling, welfare reform, housing, and veterans benefits.

Although religious employers have the right under Title VII to apply religious tests to employees, the direct receipt and administration of federal funds removes that exemption.  In addition, the federal government itself has constitutional obligations to refrain from religious discrimination or from establishing a religion.  In its proposed rule, HHS fails to meet either of those constitutional requirements.

Misapplying RFRA to Violate a Nondiscrimination Statute:  In accommodating and encouraging religious employment discrimination by SAMHSA grantees, the proposed rule goes well beyond merely implementing the charitable choice provisions in the authorizing statute.  Instead, the proposed rule misapplies the Religious Freedom Restoration Act to circumvent nondiscrimination statutes that specifically bar discrimination based on religion in the programs.  The result is a unilateral decision by HHS to refuse to enforce a nondiscrimination statute duly enacted by Congress and signed by the President.  Moreover, the proposed rule's misapplication of RFRA is particularly dangerous because, when applied to other statutory restrictions in other programs, it could become an unrestrained license for religious organizations to ignore many or all federal restrictions imposed on the use of federal dollars.

The authorizing statute for the SAMHSA Substance Abuse Prevention and Treatment Block Grant and the Projects for Assistance in Transition from Homelessness Formula Grant programs contains specific statutory prohibitions on discrimination based on religion in those programs.  42 U.S.C. 300x-57(a)(2); 42 U.S.C. 290cc-33(a)(2).  Because the statutory nondiscrimination provisions do not exclude employment decisions, as Title VI largely does, employment decisions are within the coverage of the nondiscrimination provisions.  Thus, even if a religious organization receiving or administering SAMHSA funds can escape Title VII liability for imposing a religious test on employees in the SAMHSA-funded program, the program-specific statutory nondiscrimination provisions completely bar SAMHSA from providing any federal funds to a provider that will discriminate based on religion in hiring persons to provide services with those SAMHSA funds.

Rather than simply following the nondiscrimination statute and barring funds, the proposed rule would allow religious organizations to escape the statute's provisions simply by self-certifying that the funding would affect its ability to provide services that express its religious value and mission, that it applies religious tests to similar privately-funded positions, and that applying religious tests to employees is important to its religious character.  Based on the self-certification alone, SAMHSA would then provide federal funds, notwithstanding the blanket statutory bar on such funding of religious discrimination.

The supplementary information accompanying the proposed rule explains HHS's view that the Religious Freedom Restoration Act (""RFRA"") authorizes a bureaucratic-created exemption to the nondiscrimination statute.  RFRA provides that the federal government ""shall not substantially burden a person's exercise of religion"" unless the government can show that ""application of the burden to the person is in furtherance of a compelling governmental interest, and is the least restrictive means of furthering that compelling governmental interest.""  42 U.S.C. 2000bb-1.  In the litigation of RFRA cases, the religious claimant has the burden of showing a substantial burden, while the government has the burden of showing that the rule serves a compelling interest and is the least restrictive means of achieving it.  Id.

The federal government has never before taken the position that imposing restrictions on the use of federal funds substantially burdens any person's religious exercise.  Moreover, in judicial decisions applying RFRA, courts have held that diminished access to a government benefit is not a substantial burden on religious exercise.  See, e.g., Branch Ministries v. Rossotti, 40 F. Supp.2d 15 (D.D.C. 1999) (holding that the federal government's conditioning of the tax-exempt status of religious organizations on their refraining from partisan political activity does not burden the religious exercise of the organizations); Stuart Circle Parish v. Board of Zoning Appeals of City of Richmond, 946 F. Supp. 1225 (E.D. Va. 1996) (zoning decision that merely makes church construction more expensive is not a substantial burden).  It is extraordinarily unlikely that federal courts actually applying RFRA to a religious organization seeking to discriminate in employment while participating in a SAMHSA program would find a substantial burden on the organization's religious exercise.

The self-certification does not even address the threshold question of whether compliance with a nondiscrimination provision in hiring persons for SAMHSA-funded positions substantially burdens a person's religious exercise.  RFRA, at minimum, requires more than certifying that the organization has a religious mission in providing the federal service and a general practice and commitment to imposing religious tests on other employees.  Instead, the religious organization would have to prove a substantial burden on its religious exercise by (i) not having access to the federal funds and (ii) not being able to impose a religious test on a person hired with federal funds to perform wholly secular duties.  While there are no courts that would find that either proof qualifies as a substantial burden, the proposed rule does not even require self-certification of the RFRA requirement.

The even more lawless aspect of the proposed rule's application of RFRA to the statutory civil rights provision is its conclusion that the federal government has no compelling interest in enforcing the statute to religious organizations seeking to discriminate on the basis of religion in hiring persons to work in SAMHSA-funded positions.  The government's position contradicts the leading Supreme Court case on the use of federal funds by religious organizations that discriminate.  It is also without any support among the lower court decisions applying the same standard as RFRA to claims that compliance with civil rights laws burden religious exercise.

The proposed rule contradicts the Supreme Court's seminal decision in Bob Jones Univ. v. United States, 461 U.S. 574 (1983).  In that case, the Supreme Court held that federal government could deny a religiously-run university tax benefits because the university imposed a racially discriminatory anti-miscegenation policy.  Id. at 605.  The Court decided that the federal government's compelling interest in eradicating racial discrimination in education superceded any burden on the university's religious exercise of enforcing a religiously-motivated ban on student interracial dating.  Id. at 604.

There is no meaningful difference between the government prohibiting tax benefits to organizations that discriminate based on race and the SAMHSA statutory prohibition on discrimination based on religion in SAMHSA-funded programs.  In fact, the United States itself--during the current Administration--squarely rejected the proposition that intentional religious discrimination gets less protection under the Equal Protection Clause than race.  In its October 26, 2001 brief defending the religion prong of Title VII from an Eleventh Amendment attack, the United States stated that ""[c]ontrary to Defendant's contention that the Supreme Court has 'distinguished claims involving differential treatment on the basis of race and speech from those involving religion,' there can be no doubt that the Equal Protection Clause subjects State governments engaging in intentional discrimination on the basis of religion to strict scrutiny.""  Brief of Intervenor United States in Endres v. Indiana State Police (N.D. Ind. Oct. 26, 2001) (brief is available on http://www.usdoj.gov).  The federal government cannot now take the position that it cannot enforce a civil rights ban on SAMHSA funds going to an organization claiming a right to discriminate based on religion when the Supreme Court specifically authorized the United States to enforce a civil rights ban on federal tax benefits going to an organization making a directly analogous religious exercise claim to discriminate based on race.  Thus, the statement in the proposed rule that the government has no compelling interest in enforcing the nondiscrimination statute is contrary to law--and abandons one of the seminal decisions in civil rights, namely Bob Jones Univ.

The statement that the government has no compelling interest in enforcing the nondiscrimination statute against religious organizations is even more at odds with the law when compared with judicial decisions finding a compelling governmental interest in enforcing civil rights laws protecting persons on grounds other than race or religion.  Even when applying statutes protecting persons against sex, sexual orientation, or marital status discrimination, numerous courts have held that the government had compelling interests in enforcing the statutes against persons claiming a religious right to discriminate.  See, e.g., EEOC v. Pacific Press Publishing Ass'n, 676 F.2d 1272 (9th Cir. 1982) (EEOC can enforce Title VII prohibition on sex discrimination in employment despite religious nonprofit publisher's religious exercise claim); Gay Rights Coalition v. Georgetown Univ., 536 A.2d 1, 37 (D.C. App. 1987) (District of Columbia's interest in prohibiting educational institutions from denying equal access to tangible benefits on the basis of sexual orientation is compelling); Swanner v. Anchorage Equal Rights Comm'n, 874 P.2d 274, 282-83 (Alaska 1993) (Anchorage's interest in prohibiting marital status discrimination in housing is compelling); but see Attorney General v. Desilets, 636 N.E.2d 233 (Mass. 1994) (remanding for further consideration of whether the government's interest in prohibiting marital status discrimination is compelling); Cooper v. French, 460 N.W.2d 2, 10-11 (Minn. 1990) (plurality op.) (no compelling governmental interest in ending discrimination against unmarried couples).  Clearly, courts that find compelling interests in enforcing civil rights statutes on the bases of sex, sexual orientation, or marital status will certainly find a compelling governmental interest in enforcing a SAMHSA civil rights statute protecting persons against religious discrimination.

The rationale of the proposed rule could undo every statutory or regulatory requirement imposed on religious organizations participating in federal programs.  If HHS finds no compelling interest in enforcing a prohibition against religious discrimination, there is little reason to believe that it will enforce any other requirement on any religious organization claiming that a requirement burdens its religious exercise while participating in the federal program.  In other words, if HHS is stating that it will not enforce a law that embodies among the most compelling interests of the United States, then it has even less basis for enforcing all of the other statutes and regulations that apply to SAMHSA programs, but serve less compelling interests.  Clearly, Congress never intended to give anyone such broad license to avoid the law.

The Proposed Rule Implementing the SAMHSA Charitable Choice Provisions Raises Serious Establishment Clause Concerns 

The proposed rule gives effect to statutory provisions authorizing States to rely on religious organizations for the provision of publicly funded benefits and services.  Although the proposed rule indicates its intention to limit the role of faith-based groups to conduct consistent with the Establishment Clause of the United States Constitution, it falls far short of that goal.  Proposed Rule at 54.3 (a). 

The proposed rule does not sufficiently detail the scope of religious content that must constitutionally be omitted from government-funded programs.  It authorizes conduct -- such as holding publicly funded programs in facilities adorned with religious icons and issuing invitations, during government-sponsored programs, to later prayer sessions -- that will unconstitutionally convey the message that the government endorses religious beliefs.  And, in express violation of binding Supreme Court precedent, it permits direct grants of public dollars to organizations whose religious mission subsumes all secular functions. 

First, although the proposed rule specifies that no SAMHSA funds may be used for ""inherently religious activities,"" it fails to clarify the scope of religious activity that must, by mandate of the Constitution, be omitted from publicly funded programs.  Proposed Rule at 54.4.  The proposed rule defines ""inherently religious activities"" only as conduct ""such as worship, religious instruction, or proselytization."" Proposed Rule at 54.4.  As further guidance, the Department of Health and Human Services states that ""inherently religious activities"" include ""for example, conduct[ing] prayer meetings, studies of sacred texts, or any other activity that is inherently religious.""  Such guidance is insufficient to ensure that grantees do not run afoul of the Constitution.  The proposed rule must be clear:[1] Religious organizations using public funds to provide social services must provide those services in an entirely secular manner.  The list of examples provided by the proposed rule does too little to prevent the unconstitutional inclusion of religious messages in government-financed programs.  

For example, although none of the following scenarios falls clearly within the ""inherently religious activities"" barred by the proposed rule, each violates the Establishment Clause and therefore must be prohibited:  

• A faith-based organization receives federal funds to run a vocational training program.  The counselors running the program use Bible stories to help emphasize the importance of a good work ethic. 
• A faith-based organization receives federal funds to run a welfare-to-work program.  As one presentation for program participants, the organization puts on a skit in which Jesus appears as a character forgiving past sins and encouraging a fresh start. 
• A faith-based organization receives federal funds to run a drug treatment program.  The program's counselors encourage participants to accept and trust in a higher power as one of many steps necessary for recovery.  

These scenarios are based on actual conduct, by recipients of public funds, that have been held unconstitutional.    For example, in a lawsuit challenging the state of Louisiana's distribution of federal dollars to faith-based organizations in the context of abstinence education, the ACLU established (among many other constitutional violations) that one faith-based organization had used the story of Joseph and Mary and the virgin birth to teach teenagers the importance of abstinence; that others relied heavily on scriptural precepts to promote abstinence; and that others used theatrical skits with Jesus as a character to teach the importance of abstinence.  The United States District Court for the Eastern District of Louisiana held that the use of public dollars for such conduct violates the Establishment Clause.  ACLU v. Foster, 2002 WL 1733651 (E.D.La.)

The risk of the occurrence of such conduct is very real, and the proposed rule must be changed to make clear that it is impermissible.  To ensure that the use of TANF dollars does not violate the Establishment Clause, the proposed rule must be changed to make clear that the government may not ""disburs[e] [public] funds to organizations or individuals that convey religious messages or otherwise advance religion in any way in the course of any event supported in whole or in part by [public] funds, or in any document or other resource produced . . . in whole or in part using [public] funds."" ACLU v. Foster, 2002 WL 1733651 (E.D.La.)

Second, the proposed rule authorizes conduct that will impermissibly convey the message that the government endorses religious content.  For instance, the proposed rule allows organizations to use their facilities for government-financed programs ""without removing religious art, icons, scriptures, or other symbols,"" Proposed Rule at 54.5, and permits personnel running the taxpayer-funded programs to wear clerical garb and to invite participants to attend subsequent religious worship sessions.  Supplementary Information, Regulatory Provisions, Restriction on Religious Activities.  Yet allowing such intermingling of government financing and religious content impermissibly fosters the impression of government support for a religious mission.  See, e.g., County of Allegheny v. American Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573, 592-93 (1989) (holding that government actions with the purpose or effect of endorsing religion violate the Establishment Clause); see also Mitchell v. Helms, 530 U.S. 793, 843 (2000) (O'Connor, J., concurring) (government-financed programs violate the Establishment Clause if ""the reasonable observer would naturally perceive the aid program as government support for the advancement of religion"") (emphasis in original).  The proposed rule must be changed to remedy these constitutional deficiencies. 

Third, the proposed rule allows the direct granting of public dollars to organizations, such as churches and religious seminaries, in which religious missions overpower secular functions. Proposed Rule at 54.2, definitions of ""direct funding"" and ""religious organization"" (allowing direct financial grants to all nonprofit religious organizations).  Yet binding Supreme Court authority forbids the direct grant of public dollars to such organizations.  In Bowen v. Kendrick, 487 U.S. 589, 610 (1988), the Supreme Court held that the government may not issue direct money grants to institutions in which ""religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission.""  See also Mitchell 530 U.S. at 819-20 (plurality opinion) (recognizing ""special Establishment Clause dangers"" when public dollars flow to such sectarian institutions); id. at 855 (O'Connor, J., concurring) (noting ""our continued recognition of the special dangers associated with direct money grants to [such sectarian] institutions"").  The Court explained that the ban on direct financial aid to such institutions is necessary because ""there is a risk that direct government funding, even if it is designated for specific secular purposes, may nonetheless advance the pervasively sectarian institution's 'religious mission.'""  Id. at 610; see also id. at 612 (""[I]n the context of aid to [such] i