American Civil Liberties Union

Memo on H.R. 3073
The Fathers Count Act

November 9, 1999

Dear Representative:

We are writing to urge you to oppose H.R. 3073, the "Fathers Count Act," because it would entangle government in the affairs of churches and other houses of worship while violating the religious liberty rights of program beneficiaries, and because it would expand the uses of the "New Hires Database" in violation of the privacy interests of U.S. workers. Congressman Edwards will offer an amendment that addresses some, but not all of these problems. While we urge you to support the Edwards amendment, the problems in the bill that would remain compel us to recommend that you oppose the bill even if the Edwards amendment is adopted.

Under current law, "religiously affiliated" organizations can receive public funds and provide social services. The "charitable choice" provision of the bill would change current law to permit all religious institutions, including pervasively sectarian organizations, such as places of worship, to use taxpayer dollars for programs in which program beneficiaries may be proselytized. It is virtually impossible for faith-based counseling programs to segregate the secular service from the religious message. Funding for such programs would therefore violate the Establishment Clause of the First Amendment. See Bowen v. Kendrick, 487 U.S. 589 (1988). 

Because government dollars trigger government oversight, the "charitable choice" provision would also impermissibly entangle the government with religion in violation of the Establishment Clause. The bill would also allow religious providers to engage in religious discrimination against employees paid with taxpayer dollars. Although religious institutions are permitted to hire co-religionists in the context of private religious activity, the employment provision effectively would allow religious organizations to discriminate in hiring for jobs paid for with federal funds. 

We urge you to support Congressman Edwards' amendment because it addresses the unconstitutional provisions in the section of this bill regarding the "applicability of charitable choice provisions of welfare reform." The Edwards amendment ensures that only faith-based organizations that are not pervasively sectarian will be able to receive federal grants to provide certain social services. The amendment is consistent with current law and merely restores the appropriate constitutional safeguards that exist to protect both the beneficiaries and providers of publicly-funded social service programs. However, the Edwards amendment does not address the problem of taxpayer-funded employment discrimination by the religious organizations that will be providing services funded by the government under this act. For this reason, and for the reason below, we urge you to oppose the Father's Count Act regardless of whether the Edwards amendment is adopted. 

The bill would also help turn employers' gates into government checkpoints. When a person accepts a job, they do not expect that the government will rifle through their personal information and make a report about them to others. In the 1996 Personal Responsibility and Work Opportunity Reconciliation Act, Congress required that a database of all new hires -- with worker name, address and SSN, and the employer's name and Taxpayer ID Number -- be created primarily for the purpose of collecting child support payments. 

However, sections 501 and 606 of the bill would permit new uses of the New Hires Database. Under H.R. 3073, this database would also be used to match new hire information for the purposes of collecting on student loans and administering unemployment benefits. Our society doesn't permit the government to perform a physical search of each person when they take a new job, why should it permit the government to conduct an informational search about a new worker just because they have accepted a new job? This provision breaches an implicit privacy promise Congress and the Administration made in 1996 to allow use of the New Hires Database only for the purposes authorized in the welfare bill, and it does so without notice to the worker and worker access to the information being shared about him or her to ensure accuracy. 

We urge you to oppose this legislation.

Sincerely,  

Laura W. Murphy
Director  

Terri Ann Schroeder
Legislative Representative  

Gregory T. Nojeim
Legislative Counsel