BY FACSIMILE AND E-MAIL
Director
Regulations Management (00REG1)
Washington DC
Re: Comments on Proposed Rule revising provisions applied to religious organizations participating in the VA Homeless Providers Grant and Per Diem Program (RIN 2900-AL63)
Dear Director:
The American Civil Liberties Union respectfully submits these comments urging the Department of Veterans Affairs to revise the proposed rule altering the provisions that apply to religious organizations participating in the VA Homeless Providers Grant and Per Diem Program. As written, the proposed rule is inconsistent with constitutional requirements, 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 the Department of Veterans Affairs and grant and per diem program recipients engaging in unconstitutional or otherwise illegal conduct.
The Proposed Rule Will Likely Result in Unconstitutional Employment Discrimination
The proposed rule amends the existing VA Homeless Providers Grand and Per Diem Program regulations by deleting an existing provision establishing as a condition for receiving assistance that ""an organization that is primarily a religious organization must agree not to discriminate against any employee on the basis of religion and could not limit employment or give preference on the basis of religion."" This change may lead participating organizations to believe that they can, while hiring for a position funded by VA, retain their exemption from the provision in Title VII of the Civil Rights Act of 1964 generally prohibiting religious discrimination in employment. Such an interpretation would be in violation of the law and would open the door to government-funded discrimination.
The supplementary information published with the proposed rule justifies the deletion of existing protections under §61.64 against religious discrimination in VA programs by citing Section 702 of the Federal Civil Rights Act of 1964 ""provid[ing] that a religious organization may, without running afoul of TitleVII, employ individuals who share its religious beliefs."" The referenced section of the U.S. Code is a provision 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 VA programs, all of which, as noted in the proposed rule, provide direct financial assistance to participating organizations.
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 1965 President Lyndon B. Johnson issued EO 11246 and this policy has remained unchanged through five Republican and three Democratic Administrations. EO 11246 not only prohibits discrimination in contracting and employment, but it requires vigorous record keeping to prevent future discrimination in hiring and to address racial inequalities apparent in workforces across the country. It specifically prohibits discrimination in employment on the basis of race, creed, color, or national origin. Persons who contract with the federal government must take specific measures to ensure fairness and equality in hiring and must document these efforts. Consistent with this longstanding policy, the current VA regulation requires recipients of VA Homeless Providers Grant and Per Diem Program funds to comply with standards set forth in EO 11246 to prevent discrimination in employment and should be retained in the final rule. Allowing religious discrimination in federally-funded programs would represent a landmark change in policy for both VA and the federal government.
The Proposed Rule Raises Serious Establishment Clause Concerns
Although the proposed rule seemingly intends to limit the role of faith-based groups to conduct consistent with the Establishment Clause, it falls far short of that goal. The proposed rule is inconsistent with at least 104 years of Supreme Court interpretation of the constitutional prohibition against government-funded religious discrimination as highlighted in Bowen v. Kendrick, 487 U.S. 589 (1988). The Court made clear that, although the Constitution does not bar religious organizations from participating in federal programs, it requires (1) that no one participating in a federal program can ""discriminate on the basis of religion"" in the federal program, and (2) that all federal programs must be carried out ""in a lawful, secular manner."" Id. at 609, 612.
The Supreme Court has never allowed government-funded religious discrimination in employment in federally-funded programs. Rather, Chief Justice Rehnquist in Bowen cited the Supreme Court's opinion in an 1899 case, Bradfield v. Roberts, 175 U.S. 291 (1899), as an example of the type of religious organization that can participate in a federal program. In Bowen, Rehnquist (for the majority of the Court) explained that one of the most important reasons that the Court in Bradfield had found constitutional government funding of a new building on the grounds of a Catholic-run hospital was because the hospital did not ""discriminate on the basis of religion."" Bowen at 609.
The Supreme Court's citation of the 1899 case in its Bowen opinion was consistent with the Court's position that the federal government has a compelling interest in eradicating discrimination in federally-funded programs-even if a grantee is claiming a religious right to discriminate. In Bob Jones Univ. v. United States, 461 U.S. 574 (1983), 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 students 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 prohibition against organizations participating in VA programs discriminating on the basis of religion when hiring for government-funded positions. 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 www.usdoj.gov).
The Proposed Rule Does Not Sufficiently Detail the Scope of Religious Content That Must Constitutionally Be Omitted From Government-Funded Programs.
Although the proposed rule specifies that no VA 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. The proposed rule defines ""inherently religious activities"" only as conduct ""such as worship, religious instruction, or proselytization."" As further guidance, the proposed rule states that ""VA funds under this part provided directly to a participating organization may not be used, for example, to conduct 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 VA 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.)
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, scripture, or other religious symbols,"" and permits personnel running the taxpayer-funded to invite participants to attend subsequent religious worship sessions. 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.
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. 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] institutions . . . there [i]s a 'substantial' risk that aid to these religious institutions would, knowingly or unknowingly, result in religious indoctrination.""). To meet constitutional mandates, the proposed rule must be changed to prohibit direct financial grants to such sectarian institutions.
The Proposed Rule Should Provide Clear Protections From Religious Coercion
The proposed rule provides that ""[o]rganizations that engage in inherently religious activities, such as worship, religious instruction, or proselytization, must offer those services separately in time or location from any programs or services funded with direct financial assistance from VA, and participation in any of the organization's inherently religious activities must be voluntary for the beneficiaries of a program or service funded by direct financial assistance from VA."" The Constitution prohibits the government from coercing persons, even subtly or indirectly, to undergo religious indoctrination or to participate (even as bystanders) in religious services. See, e.g., Santa Fe Independent School District v. Doe, 530 U.S. 290, 310-12 (2000); Lee v. Weisman, 505 U.S. 577, 592-96 (1992). This rule of law applies to government-funded social service providers, barring them from coercing or pressuring benefit recipients to take part in religious activity or to submit to religious proselytization. The proposed rule should be modified to require that participating organizations inform beneficiaries that conditioning the receipt of benefits on their participation in religious activities and any pressure that they participate in religious activities is impermissible.
The Proposed Rule Must Provide Safeguards to Mitigate the Potential Constitutional Violation and Provide Adequate Oversight and Monitoring of Grantees
Given the Establishment Clause dangers of providing government funding to faith-based organizations for the provision of social services, the proposed rule should retain the existing provision requiring religious organizations to ""conduct activities for which the [financial] assistance is provided in a manner that is free from religious influences."" The supplementary information to the proposed rule suggests that it would be unfair to require a religious organization to provide an assurance ""above and beyond those any other organization is required to provide."" Given the unique, obvious and powerful disincentive for a beneficiary to report improperly religious conduct on the part of his or her homeless service provider, we believe the final rule should retain the existing assurance requirement related to religious organizations and/or include additional safeguards such as those incorporated in the court order resolving the litigation in Louisiana to ensure that government funds were not used inappropriately to fund religion. The proposed rule should also require monthly reports from VA grantees detailing whether religious content has been included in any publicly funded program. Periodic site visits to publicly funded programs should be required to ensure compliance with the Establishment Clause. Grantees should be required to notify participants in publicly funded events that, by mandate of the Constitution, any promotion of religion is impermissible. Such measures are necessary to mitigate the constitutional concerns raised by the proposed rule.
Please do not hesitate to call us if you need any additional information regarding this matter.
Respectfully submitted,
Laura W. Murphy
Executive Director
Christopher E. Anders
Legislative Counsel
Terri A. Schroeder
Legislative Analyst
[1] The need for clarity on this issue is evident from the comments of those entities now implementing the Charitable Choice provisions. In a September 2002 survey of five states conducted by the General Accounting Office in response to a request by Congress, faith-based organizations and government officials involved in implementing federal Charitable Choice provisions expressed great confusion about what activities are ""allowable . . . under the prohibition on the use of federal funds for religious instruction and proselytizing.""