Letter to the House Education and Workforce Committee Urging Support for the Woolsey Amendment to the Community Services Block Grant Act of 2003

September 25, 2003

Vote ""NO"" on CSBG Reauthorization Unless Woolsey Amendment Passes;
Protect Civil Rights--Stop Federally Funded Religious Discrimination;
Ban CSBG Dollars from Being Diverted to Religious Activities

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Re:  Woolsey Amendment to the Community Services Block Grant Act of 2003

Dear Representative:

The American Civil Liberties Union strongly urges you to support the Woolsey Amendment to the Community Services Block Grant Act of 2003 (H.R. 3030).  The Woolsey Amendment will restore civil rights protections to persons employed or participating in federally funded CSBG programs, and will ensure that scarce CSBG dollars cannot be diverted to religious activities.

The Woolsey Amendment exactly tracks two of the important legal points made by the Supreme Court in Chief Justice Rehnquist's majority opinion 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 Woolsey Amendment Implements the Constitutional Ban on Government-Funded Religious Discrimination Described in Bowen v. Kendrick

The Woolsey Amendment will make the CSBG program consistent with Bowen v. Kendrick, and with at least 104 years of Supreme Court interpretation of the constitutional prohibition against government-funded religious discrimination.  It will make clear to federal government grantmakers and to the recipients of the grants that religious discrimination is prohibited in the program.

During the debate on the reauthorization of Head Start, several supporters of government-funded religious discrimination mischaracterized the Supreme Court's opinion in Bowen, and caused confusion on whether the Supreme Court has ever held that it is constitutional for religious organizations to discriminate based on religion in employing persons working in federal programs.  The Supreme Court has never allowed government-funded religious discrimination in employment in federally funded programs.

Instead, 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 the  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 Woolsey Amendment's statutory prohibition on discrimination based on religion in CSBG 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 www.usdoj.gov).  

Congress should pass the Woolsey Amendment to impose a civil rights ban on federal funds going to an organization claiming a right to discriminate based on religion, consistent with Bob Jones Univ. that 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.  Bob Jones University, which was banned from a federal tax program because of its racist policies, should not be welcomed into a CSBG program despite its anti-Catholic policies.

The Woolsey Amendment Also Implements the Constitutional Ban on Diverting Federal Funds to Religious Activities Described in Bowen v. Kendrick

The principal holding of the Supreme Court in Bowen was that religious organizations could participate in a federal grant program, but only if the grantee carried out the program in a lawful, secular manner.  In fact, the Woolsey Amendment, which requires each CSBG grantee ""that carries out [a CSBG] program, or provides assistance, under this subtitle shall carry out such program, or shall provide assistance, in a lawful and secular manner"", is nearly word-for-word from Chief Justice Rehnquist's majority opinion in Bowen, which held that ""religiously affiliated AFLA grantees [must be] capable of carrying out their functions under the AFLA in a lawful, secular manner.""  Bowen, 589 U.S. at 612.

The Woolsey Amendment, like the Supreme Court's Bowen decision that it tracks, will preclude scarce federal funds from being diverted to religious activities.  It preserves the fundamental goal of having the government--and government-funded services--open and welcoming to all persons, regardless of religion. 

Although the CSBG Act already specifies that no CSBG 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. It defines ""inherently religious activities"" only as conduct such as worship, religious instruction, or proselytization.  The Department of Health and Human Services regulation defines ""inherently religious activities"" as including prayer meetings, studies of sacred texts, or ""any other activity that is inherently religious,"" but the regulation is insufficient to ensure that grantees do not run afoul of the Constitution. The statute should be clear that 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 Act or the implementing regulation do too little to prevent the unconstitutional inclusion of religious activity in CSBG-financed programs.  

For example, although neither of the following scenarios falls clearly within the ""inherently religious activities"" barred by the statute, each would violate the holding in Bowen:  

  • 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.  At 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.  

These scenarios are based on actual conduct, by recipients of public funds, that have been held unconstitutional. 

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 birth of Jesus 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.)

In addition, the statute appears to allow direct federal funding of organizations, such as churches, synagogues, mosques, and religious seminaries, in which religious missions overpower secular functions.  However, the Supreme Court forbids the direct grant of public dollars to such organizations.  In Bowen, 487 U.S. at 610, 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 v. Helms, 530 U.S. 793, 819-20 (2000) (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."").  The Woolsey Amendment would preclude these constitutional harms.

Vote ""YES"" on the Woolsey Amendment; Vote ""NO"" on Final Passage if the Woolsey Amendment Fails

Although religious employers have the right under Title VII to apply religious tests to employees, the Constitution requires that direct receipt and administration of federal funds removes that exemption.  In addition, the federal government itself has constitutional obligations--clearly explained by Chief Justice Rehnquist in Bowen v. Kendrick--to refrain from religious discrimination or from funding religious activities.  The Woolsey Amendment would put both of these constitutional mandates into the CSBG authorizing statute.

For these reasons, the ACLU strongly urges you to vote ""YES"" on the Woolsey Amendment, and vote ""NO"" on final passage if the Woolsey Amendment fails.  Thank you for your attention to this matter.  

Very truly yours,

Laura W. Murphy
Director
ACLU Washington Legislative Office

Christopher E. Anders
Legislative Counsel

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