Memo on the Charitable Choice Expansion Act of 1999

“The Charitable Choice Expansion Act”

The Expansion Act contains much of the same language as the “Charitable Choice” provisions offered on various public health and social service bills in the 104th and 105th Congresses. Although the standard elements of “Charitable Choice” approved by Congress in the 1996 Welfare Reform Act appear again in this Act, so do additional elements from the unenacted 1998 Watts-Talent proposal. Thus, this Act treads on dangerous waters by flagrantly ignoring the unconstitutionality of “Charitable Choice” provisions, which seek to provide direct aid to pervasively sectarian religious institutions in violation of the Establishment Clause. It also permits religious service providers to indoctrinate government beneficiaries, entrusts them with state power by allowing them to select and oversee government subcontract, broadens the range of publicly funded discrimination, and pre-empts more protective state constitutional provisions.

The Expansion Act would allow taxpayer funds to flow directly into the coffers of pervasively sectarian religious institutions.

Although the Supreme Court has allowed religiously affiliated organizations to provide government-funded services in a secular manner, it has never permitted pervasively sectarian religious institutions to receive direct state aid. In so ruling, it has reasoned the religious missions of such institutions are so predominant in their operations that awarding them government aid would have the effect of advancing religion in contravention to the First Amendment. In defiance of that standard, this Act 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.” This provision demonstrates that the Act was designed to fund pervasively sectarian religious organizations in spite of the commands of the Establishment Clause. Even under the Court’s more lenient standards, these provisions fall outside the realm of permissible accommodation because they fail to institute the appropriate safeguards.

The “Charitable Choice Expansion Act” would allow pervasively sectarian religious institutions to provide government-funded services contrary to the Court’s jurisprudence in a number of ways. First, it permits government-funded public health and social services to be provided in, not merely near, a house of worship. Second, it explicitly entitles religious providers to display religious “art, icons, scripture, or other symbols” in areas where they provide government services. Third, it allows religious service providers to discriminate in all aspects of employment, including off-the-job conduct of employees. Fourth, it allows religious institutions to require beneficiary participation in religious worship, as long as the provider does not against discriminate against them when providing services. The religious provider would even be permitted to require beneficiaries to follow off-site rules of religious behavior. Finally, the Act enables religious organizations to keep their religious character and mission intact.

The only instance in which aid to pervasively sectarian religious institutions may be permissible is when the monetary benefit flowing to the organization constitutes an incidental result from a beneficiary’s independent choice among both secular and religious options. This Act cannot hide under this narrow exception, however, because it allows taxpayer funds to be awarded to such institutions in the form of direct contracts, severing the beneficiary from the transaction and defaulting to the government’s denominational preference. Thwarting its other constitutional safe harbor, this Act also fails to isolate the delivery of government services from the influence of the religious organization’s ideological mission.

The Expansion Act would allow taxpayer-funded religious institutions to indoctrinate beneficiaries of government programs.

The Supreme Court has made it clear that the First Amendment “absolutely prohibits government-financed or government-sponsored indoctrination” of a religious faith. Despite this constitutional roadblock, the Expansion Act by does not address indoctrination that is funded by private moneys, but included along with the provision of the specific service.. This difference is too thin a line to insulate it from judicial condescension, however, because the beneficiaries would be subjected to indoctrination solely due to their participation in a government program that should be executed in a wholly secular manner. Moreover, the salience of this defect is highlighted by the explicit approval of government services that are delivered in overtly religious, and thus, inherently coercive environments. The unconstitutional stamp of approval on this type of religious expression, especially when juxtaposed to a lack of similar accommodation for ideological secular organizations, simply cannot be overlooked.

Furthermore, the Court has held that, “at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise.” While the Act formally admonishes religious service providers not to condition services on a beneficiary’s avowal of the institution’s beliefs or participation in religious activities, it does not prevent them from using more subtle tactics of coercion. And, as the Court has stated, even subtle coercion, when sanctioned by the government, may appear to a “dissenter to be an attempt to employ the machinery of the State to enforce a religious orthodoxy.” In sanctioning even subtle religious coercion, this scheme runs afoul of the First Amendment.

Approaching this provision from the opposite direction, this Act fails to require service providers to give beneficiaries notice of their right not to participate in religious activities. Indeed, by forbidding only quid pro quo discrimination against intractable beneficiaries, the Act exposes its religiously driven intent, which is to push the constitutional envelope and allow religious institutions to force their beliefs onto government beneficiaries so long as they do not explicitly threaten beneficiaries with termination of services. This fails to heed the warning of the Supreme Court when it recalled the history lesson upon which Establishment Clause was built: “what might begin as a tolerant expression of religious views may end in a policy to indoctrinate and coerce.” The wisdom of this statement should cause lawmakers to be circumspect about opening up the door for widespread indoctrination down the road.

As a further aggravation to the constitutional injury inflicted upon them, beneficiaries would not have the option whether or not they will be assigned to a religious provider. Notwithstanding their right to object, the statutory scheme fails to ensure that participation is “not attributable to state decisionmaking” because beneficiaries are assigned to the government’s religious organization of choice.

The Expansion Act would grant governmental discretion to pervasively sectarian religious institutions.

The Establishment Clause forbids the government from giving religious institutions state powers. Deviating from this rule, this Act would allow religious institutions to select and administer government subcontracts, while retaining their religious character. In so doing, it constructs a veritable “fusion of governmental and religious functions” that perforates the ‘wall’ between church and state. Additionally, there is no “effective means of guaranteeing” that delegated power will be used appropriately to achieve the government’s secular purposes because the provisions neither institute checks against favoritism nor safeguards against religious indoctrination.

The Expansion Act would endorse government-sponsored discrimination by allowing religious institutions to discriminate in the hiring and firing of employees.

Although religious organizations already benefit from a religious exemption to Title VII when funded by private dollars, this Act would extend the privilege to publicly funded employees. Although both Title VII and the Equal Protection Clause of the Fourteenth Amendment forbid discrimination in employment, this provision essentially gives public contractors license to deny employment for secular services on the basis of religion, as well as marital or familial status, gender, sexual orientation, or pregnancy status. While the Court has upheld very narrow exemptions from private religious discrimination, it has not addressed the issue when the employees were paid by tax dollars. Indeed, the reasoning of the Court suggests that it would conclude otherwise in the context of state-funded employment.

The conclusion that government should not fund employment discrimination is also supported by the First Amendment Free Exercise Clause, which preserves religious liberties by ensuring that employment is not conditioned on one’s beliefs or religious exercises. This Act would not only violate the foregoing principle by allowing religious contractors to deny employment or subcontracts based upon religious beliefs; it would also allow religious contractors to require employees to participate in or refrain from activities in accordance with its religious “tenets and teachings.” In short, this Act would encroach upon individual service providers’ religious liberties by forcing them to choose between their own religious convictions, which may differ from the contractors in the local area, and their zeal to provide the much needed services to disadvantaged individuals in the community.

The Expansion Act would give an ‘uncharitable advantage’ to religious service providers thus impermissibly favoring religion over nonreligion.

Although the Establishment Clause forbids the favoring of religion over nonreligion, this Act would do just that by allowing religious service providers to indoctrinate beneficiaries, discriminate with impunity, and endure only limited government oversight. In contrast, nonreligious providers are not granted any of these ‘perks.’ By establishing a double standard that depends upon the religious nature of an organization’s mission, this Act would create incentives for nonreligious institutions to ‘convert’ to a particular religion to capture these benefits.

The Expansion Act would explicitly pre-empt state constitutions that provide greater protections for religious liberty.

Many states have carefully crafted constitutional provisions that prohibit the government from entangling itself in the affairs of religious institutions, and by so doing, preserve religious liberty for its state citizens. Yet, this Act would unravel these protections with one short tug: an explicit preemption section that overrides any state constitution prohibiting taxpayer funds from being diverted to religious institutions. Thus, this Act thwarts the ability of state leaders to afford the individuals in that state more meaningful protection of their religious liberties than is provided by the federal government.

Alternatively, if state constitutions were not pre-empted, this Act would violate the Establishment Clause by unduly burdening religious service providers in those states where the constitution forbids the funding of religious institutions. It would do so by requiring religious institutions to segregate federal and state funds. Requiring religious institutions to jump through hoops to circumvent state law would violate the Establishment Clause by excessively entangling the government in the “details of administration” of religious institutions. This violation would result from the high level of involvement necessary to ensure that the respective funds were not used inappropriately.

The Expansion Act would open the door to government oversight of religious institutions.

While religious institutions currently enjoy freedom from government regulation, this Act would expose religious groups to government audits, certain nondiscrimination laws, and a cumbersome stack of bureaucratic compliance requirements by virtue of their receiving federal funds. In addition, state and local regulations, including detailed health and safety standards, would be triggered if state funds were commingled with the federal funding received.

Not only would state and federal agencies be knocking on church doors, but courts would also become intimately involved in the internal affairs and operation of religious programs. This result would logically follow because beneficiaries maintain their rights to challenge religious indoctrination in violation of the Establishment Clause, assert their religious liberties under the Free Exercise Clause, and protest other forms of discrimination under the Equal Protection Clause. Employees and applicants could also seek to enjoin discriminatory actions or recover money damages for alleged violations of any number of constitutional or statutory provisions to which religious service providers would now be susceptible.

Moreover, the amount of oversight and liability that religious institutions would incur from entering into government contracts is not readily apparent from the face of this legislation. It does not guarantee a static arrangement of limited oversight. And, as the amount of governmental aid flowing in increases, taxpayers will inevitably demand more accountability. As religious institutions become more accountable to the government, religious autonomy will proportionately be whittled down and whittled down to bare shreds.

The Expansion Act would co-opt the religious mission of houses of worship and transform them into arms of the government.

Although the Act purportedly gives religious organizations continued control over their religious message, shifting dynamics between religious institutions and the government will eventually filter into the substance of their services, as both public oversight and funding increase. For, as one seasoned nonprofit service provider observed, “Most everyone is fighting for every penny they can get to run whatever program they have . . . . [I]f you can’t do it the way you want, then you’ll take your program and you’ll fit it into what the government will give you money for.” Indeed, this Act authorizes government agencies to contract out religious institutions to deliver entire categories of social services. Thus, if the Baptist church oversaw job training for a state welfare program, it would become responsible for administering subcontracts, policing individuals for program infractions, and terminating benefits for noncompliance. In this scenario, the demarcation between church and state would become so muddled as to undermine the effectiveness of the religious message.

In addition, this Act would propel a cycle of dependency on federal funding as the contracts available to religious institutions increase. As a Volunteers of America spokesperson observed, “government funding ‘impairs your impetus to go out and raise funds. That’s a real danger all nonprofits face – just sitting back and figuring the government will take care of you.'” Not only would religious institutions lose motivation to tap private donor pools, but donors would also perceive less reason to give because expectations would shift as public funding increased. The Court has recognized the “hazards of government supporting churches,” yet this Act ignores the ominous cloud of government oversight it enables by allowing government to become religion’s employer.

The Expansion Act would transform houses of worship into rivaling ‘hired hands.’

Largely due to the respect given to the Establishment Clause throughout our history, houses of worship have remained dignified and pacifistic. This Act would throw away that proud history, however, by putting over 15,000 religious denominations in direct competition for any federally funded public health or social service contract. Despite its so-called “nondiscrimination” principle, governmental officials would still have discretion to pick their favorite sectarian flavor and fund it with tax dollars. This Act would also grant religious institutions the discretion to dole out subcontracts. These provisions would create a political battleground wherein sects fought to corner the market on a particular service and nepotistically protected their ‘own’ in the selection of subcontractors. Such a state of affairs was what the Founders sought to prevent when they drafted and enacted the First Amendment of our Constitution.

Conclusion