[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]
FAITH-BASED INITIATIVES: RECOMMENDATIONS OF THE PRESIDENT'S ADVISORY
COUNCIL ON FAITH-BASED AND COMMUNITY PARTNERSHIPS AND OTHER CURRENT
ISSUES
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION,
CIVIL RIGHTS, AND CIVIL LIBERTIES
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION
__________
NOVEMBER 18, 2010
__________
Serial No. 111-156
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
----------
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COMMITTEE ON THE JUDICIARY
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas DANIEL E. LUNGREN, California
MAXINE WATERS, California DARRELL E. ISSA, California
WILLIAM D. DELAHUNT, Massachusetts J. RANDY FORBES, Virginia
STEVE COHEN, Tennessee STEVE KING, Iowa
HENRY C. ``HANK'' JOHNSON, Jr., TRENT FRANKS, Arizona
Georgia LOUIE GOHMERT, Texas
PEDRO PIERLUISI, Puerto Rico JIM JORDAN, Ohio
MIKE QUIGLEY, Illinois TED POE, Texas
JUDY CHU, California JASON CHAFFETZ, Utah
TED DEUTCH, Florida TOM ROONEY, Florida
LUIS V. GUTIERREZ, Illinois GREGG HARPER, Mississippi
TAMMY BALDWIN, Wisconsin
CHARLES A. GONZALEZ, Texas
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California
DANIEL MAFFEI, New York
JARED POLIS, Colorado
Perry Apelbaum, Majority Staff Director and Chief Counsel
Sean McLaughlin, Minority Chief of Staff and General Counsel
------
Subcommittee on the Constitution, Civil Rights, and Civil Liberties
JERROLD NADLER, New York, Chairman
MELVIN L. WATT, North Carolina F. JAMES SENSENBRENNER, Jr.,
ROBERT C. ``BOBBY'' SCOTT, Virginia Wisconsin
WILLIAM D. DELAHUNT, Massachusetts TOM ROONEY, Florida
HENRY C. ``HANK'' JOHNSON, Jr., STEVE KING, Iowa
Georgia TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin LOUIE GOHMERT, Texas
JOHN CONYERS, Jr., Michigan JIM JORDAN, Ohio
STEVE COHEN, Tennessee
SHEILA JACKSON LEE, Texas
JUDY CHU, California
David Lachmann, Chief of Staff
Paul B. Taylor, Minority Counsel
C O N T E N T S
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NOVEMBER 18, 2010
Page
OPENING STATEMENTS
The Honorable Jerrold Nadler, a Representative in Congress from
the State of New York, and Chairman, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties................ 1
The Honorable F. James Sensenbrenner, Jr., a Representative in
Congress from the State of Wisconsin, and Ranking Member,
Subcommittee on the Constitution, Civil Rights, and Civil
Liberties...................................................... 3
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, Chairman, Committee on the
Judiciary, and Member, Subcommittee on the Constitution, Civil
Rights, and Civil Liberties.................................... 4
The Honorable Robert C. ``Bobby'' Scott, a Representative in
Congress from the State of Virginia, and Member, Subcommittee
on the Constitution, Civil Rights, and Civil Liberties......... 6
WITNESSES
Ms. Melissa Rogers, Director, Center for Religion and Public
Affairs, Wake Forest University Divinity School
Oral Testimony................................................. 9
Prepared Statement............................................. 12
Mr. Douglas Laycock, Armistead M. Dobie Professor of Law, Horace
W. Goldsmith Research Professor of Law, Professor of Religious
Studies, University of Virginia School of Law
Oral Testimony................................................. 34
Prepared Statement............................................. 36
Reverend Barry W. Lynn, Executive Director, Americans United for
Separation of Church and State
Oral Testimony................................................. 53
Prepared Statement............................................. 55
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Robert C. ``Bobby'' Scott, a
Representative in Congress from the State of Virginia, and
Member, Subcommittee on the Constitution, Civil Rights, and
Civil Liberties................................................ 163
Prepared Statement of the Honorable Henry C. ``Hank'' Johnson,
Jr., a Representative in Congress from the State of Georgia,
and Member, Subcommittee on the Constitution, Civil Rights, and
Civil Liberties................................................ 169
Addendum to the Prepared Statement of the Reverend Barry W. Lynn,
Executive Director, Americans United for Separation of Church
and State...................................................... 173
Post-Hearing Questions and Responses of Melissa Rogers, Director,
Center for Religion and Public Affairs, Wake Forest University
Divinity School................................................ 178
Post-Hearing Questions and Responses of Douglas Laycock,
Armistead M. Dobie Professor of Law, Horace W. Goldsmith
Research Professor of Law, Professor of Religious Studies,
University of Virginia School of Law........................... 193
Post-Hearing Questions and Responses of Reverend Barry W. Lynn,
Executive Director, Americans United for Separation of Church
and State...................................................... 203
Letter from C. Welton Gaddy, President, Interfaith Alliance...... 216
Letter from Jon O'Brien, President, Catholics for Choice......... 218
Letter from the Reverend J. Brent Walker, Executive Director, and
K. Hollyn Hollman, General Counsel, the Baptist Joint Committee
for Religious Liberty.......................................... 220
Prepared Statement of Alan Yorker, MA, LMFT...................... 226
FAITH-BASED INITIATIVES: RECOMMENDATIONS OF THE PRESIDENT'S ADVISORY
COUNCIL ON FAITH-BASED AND COMMUNITY PARTNERSHIPS AND OTHER CURRENT
ISSUES
----------
THURSDAY, NOVEMBER 18, 2010
House of Representatives,
Subcommittee on the Constitution,
Civil Rights, and Civil Liberties,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 10:39 a.m., in
room 2141, Rayburn House Office Building, the Honorable Jerrold
Nadler (Chairman of the Subcommittee) presiding.
Present: Representatives Nadler, Conyers, Watt, Scott,
Johnson, Jackson Lee, Sensenbrenner, King and Franks.
Staff present: (Majority) David Lachmann, Subcommittee
Chief of Staff; Heather Sawyer, Counsel; and Paul Taylor,
Minority Counsel.
Mr. Nadler. This hearing of the Subcommittee on the
Constitution, Civil Rights, and Civil Liberties will come to
order. I will first recognize myself for an opening statement.
Today's hearing examines the current status of the faith-
based and community partnerships, and particularly the report
of the President's Advisory Council. Although I was gratified
by the President's decision to take a fresh look at this
important but difficult issue and was especially appreciative
of the outstanding work done by members--by the members of the
Advisory Council, I, like many of my colleagues, remain
frustrated by the glacial pace of reforms.
Today's hearing is timely. Just yesterday the
Administration finally issued its revision of Executive Order
13279, setting out ``fundamental principles and policy-making
criteria for partnerships with faith-based and other
neighborhood organizations.'' It has been long anticipated and
it contains some very important reforms.
I am glad that we have with us this distinguished panel,
which I hope will be able to provide this Subcommittee with
their thoughts on the new Executive order.
Difficult issues remain. What has been especially
frustrating since President Bush first launched the initiative
is that so many of the problems that the initiative sought to
address simply never existed in the first place.
I don't think any Member of Congress, or indeed, anyone
involved in the delivery of social services from the
neighborhood level on up minimizes the critical contributions
made by people of faith and by social service providers that
have a religious affiliation, nor is there any question that
these organizations have long worked with government and
administered publicly-funded programs in ways that have done a
great deal of good for the communities we represent and for the
Nation as a whole. And it is also without question that these
partnerships existed and thrived long before the faith-based
and community initiative.
Despite some grandiose, if specious, claims to the
contrary, these organizations were not barred from receiving
public funding simply because of a religious affiliation or
because they had a religious name in their title. Every Member
of this Committee has, no doubt, worked with many religiously-
affiliated organizations in their districts and has helped get
funding for such organizations to deliver all manner of social
services, senior housing, and the like.
But if the faith-based and community initiative was a
solution in search of a problem it brought with it a host of
real problems, many of which pose a real threat to the
religious liberties of program participants and employees.
Promises that have been made about providing participants with
secular or other religiously-appropriate alternatives have gone
unfulfilled. Without these alternatives the patina of respect
for the religious rights of those most in need--not to mention
the legal pretense of constitutionality--is stripped away.
Furthermore, the promise that this initiative would
mobilize the armies of compassion has been broken precisely
because some of the initiative's most vocal supporters have
also been the first to cut off that army supply line by
slashing funding for those very programs.
As David Kuo--I hope I am pronouncing that right--the
deputy director of the White House Office of Faith-Based and
Community Initiatives in the Bush administration, wrote, ``The
achievements of the Bush faith-based initiative are a whisper
of what was promised. Irony of ironies, it leaves the faith-
based initiative specifically, and compassionate conservatism
in general, at precisely the place Governor Bush pledged it
would not go. It has done the work of praising and informing
but it has not been given the resources to change lives. In
short, like the hurting charities it is trying to help, the
initiative has been forced to, quote--`make bricks without
straw.' '' And that is the end of the quote from Mr. Kuo.
It is no secret that I have been disappointed with this
Administration's handling of these difficult issues, not to
mention with the previous Administration's handling of these
difficult issues. On the matter of ending employment
discrimination in federally-funded programs, about which the
President was so eloquent in 2008, we have heard nothing. We
haven't even been able to find out, for example, whether the
Office of Legal Counsel memo asserting that the Religious
Freedom Restoration Act creates a free exercise right to
discriminate in employment in federally-funded programs is
under review, much less what might be done with it.
I realize that the employment issue is not within the
Advisory Commission's mandate, but it is still of pressing
importance to the Members of this Committee.
I regret the Administration was unable to provide a witness
today who might be able to answer our questions about the
Executive order and about the Administration's progress on
related issues. Nonetheless, I am pleased to welcome our panel
today, and I look forward to their testimony. They are
certainly no strangers to this Committee, and I have, over the
years, had the privilege of working with each of them on many
projects, starting with the Religious Freedom Restoration Act,
which we passed the year I first joined this House a while ago.
I look forward to their testimony, and I yield back the
balance of my time.
The Chair now recognizes the distinguished Ranking Member
for an opening statement.
Mr. Sensenbrenner. Thank you very much, Mr. Chairman.
President George W. Bush began a faith-based initiative
designed to grant faith-based organizations equal access to
competitions for the administration of Federal social service
programs. Part of the effort resulted in the legal memo from
the White House Office of Legal Counsel issued on June 29,
2007.
That memo protects the right of faith-based organizations
to take part in such program while staffing their organizations
on a religious basis, allowing them to preserve their religious
character. The memo remains in force today.
Under a properly implemented faith-based program, programs
must be administered to beneficiaries without regard to
religious, but the organizations doing the administering can
themselves be religious, and that is in accordance with said
law. Nothing in the Civil Rights Act of 1964 says a religious
organization loses its right to staff on a religious basis when
it uses Federal funds. Indeed, when it enacted Title 7 in 1964
Congress was well aware that religious institutions of higher
education that staffed on a religious basis were receiving
federally-funded grants and student aid, and under the G.I.
bill established in 1944 military veterans were able to attend
religious colleges and universities of their choice and the
tuition costs were either offset or fully covered through a
Federal voucher payment sent to the selected school.
So Congress was well aware when it enacted religious
exemptions in Title 7 that Federal funds would be going to
religious organizations that made staffing decisions based upon
religion. Members of faith-based organizations should enjoy the
same rights to associate with others who share their unique
vision that other non-religious groups enjoy. To deny them the
same right would be to discriminate against people on the basis
that they are religious and have a religious rather than purely
secular way of looking at the world.
For example, Planned Parenthood may refuse to hire those
who don't share its views on abortion, but equal treatment
requires the churches, mosques, and synagogues to have the same
right to staff their organization with like-minded individuals.
Earlier this year the Government Accountability Office
issued a report finding that between 2002 and 2009 Planned
Parenthood received $657 million in taxpayer dollars while it
continued to staff its organization with like-minded people. If
Planned Parenthood can receive Federal funds and continue to
staff based upon ideological views regarding abortion, and if
religion is to be treated equally, religious organizations
should also retain their ability to staff on a religious basis
when they receive Federal funds.
If churches cannot continue to hire and staff on a
religious basis they no longer remain churches while joining
Federal social service efforts. Indeed, insofar as the courts
have had to determine whether or not an organization is a
church for tax purposes it has looked to whether it is a
coherent group of individuals and families that join together
to accomplish the religious purposes of mutually-held beliefs.
If churches, as churches, are to be invited to join Federal
social service efforts, their ability to remain a coherent
group of individuals that join together to accomplish the
religious purposes of mutually-held beliefs must be protected.
President Clinton recognized that many years ago when he
signed into law four congressional acts that explicitly allow
religious organizations to retain the right to staff on a
religious basis when they receive Federal funds. These laws are
the Substance Abuse and Mental Health Services Act, the
Community Services Block Grant Act of 1998, the Welfare Reform
Act of 1996, and the Community Renewal Tax Relief Act of 2000.
Even the Washington Post recognizes that protecting the
staffing rights of religious organizations is not radical. In a
May 2003 editorial the Post stated, ``The House of
Representatives passed a bill last week that would allow faith-
based organizations that provide federally-funded training to
discriminate in the hiring on the basis of religion.'' The
change in the Workforce Investment Act is not radical.
Religious groups, including many religious universities
that receive Federal money, are generally exempt from Federal
laws against religious discrimination and hiring. And the 1996
welfare reform bill allowed faith-based groups access to other
social service funds without their forfeiting this exemption.
Protections that preserve a religious organization's right
to remain religious while neutrally administering Federal
social services have long been accepted on a bipartisan basis,
and so it is no surprise to me that the current Administration
has not denied them.
Thank you.
Mr. Nadler. Thank you.
I now recognize the distinguished Chairman of the full
Committee for an opening statement.
Mr. Conyers. I just said no. I was kidding.
Thank you very much, Mr. Chairman, for allowing me to make
a comment or two. I have never said no before, so I just wanted
to see what it--how you would react to it. You didn't
disappoint me.
This is a very timely hearing. The Executive order comes
out yesterday, and we have a hearing--whose brilliant foresight
do we give credit to that?
Mr. Nadler. I don't entirely discount the possibility that
the timing of the hearing may have had some effect on the
timing of the issuance of the Executive order.
Mr. Sensenbrenner. The gentleman will yield, I concede that
point.
Mr. Conyers. Well, interesting question. Now, I am so glad
that our former Chairman, Jim Sensenbrenner, is here for this
important hearing, and I am not surprised that he believes that
the previous Administration's position that religious
organizations are exempt from the commitment to equal
opportunity in federally-funded employment and that they can
discriminate based on religion. That doesn't surprise me at
all.
But what does surprise me is that here, the day after an
Executive order is issued, we cannot get a representative from
the present Administration to attend the hearing. And so I
would like to get the approval of the Chair and the Ranking
Member and our Subcommittee Chairman on Crime, Bobby Scott, to
be able to communicate to the White House that they ought to
get someone over here right away before the lame duck session
ends.
Mr. Sensenbrenner. Will the gentleman yield again?
Mr. Conyers. With pleasure.
Mr. Sensenbrenner. I would be happy to cosign a letter and
will await your co-signature of letters after January 3, when
we are trying to get Administration witnesses over here.
Mr. Conyers. Well, I try to interpret that as, that after
January 5, my weight in letters of this kind will become more
important, not less important. So I thank you for joining us.
The whole idea that we can hold this hearing after knowing
and receiving information that the President has explicitly
sought from the council members an agreement not to deal with
employment discrimination needs to be explained further. And
there are ways that we can get people from the White House over
here, and I don't think that in the 21st century and in the
wake of this Administration that we need to wait to see what
more reporting and findings and recommendations come down.
I would like to know now, while you are the Chairman and I
am the Chairman, the way the 111th is proceeding we may have
plenty of time for such a hearing. And so I am glad that I have
gotten your agreement and approval to take such action.
This is no way for us to try to do business, and so I am
impressed that we have not one but two members of the council
with us today.
Reverend Lynn and Professor Rogers, we welcome you because
this isn't a matter of one branch of government drawing a bill
over a subject of this immediate importance and we have to
guess or try to figure out what and why and when something
further is coming. The President explicitly campaigned and has
made many remarks about this, not only as a candidate but as a
senator. And we don't propose to wait any longer, and I look
forward to your comments and participation in the hearing.
Thank you, Chairman Nadler.
Mr. Nadler. Thank you.
And I now recognize the distinguished gentleman from
Virginia for an opening statement.
Mr. Scott. Thank you, Mr. Chairman. And I would like to
thank you for convening this important hearing as well as
thanking our witnesses for being with us today.
And I would like to commend the members of the Advisory
Council on Faith-Based and Neighborhood Partnerships and the
members of the council's task force for their work. Their
recommendations find common ground on which to lay a foundation
for strengthening the constitutional and legal partnerships
between the government and non-governmental social service
providers, as well as provide clarity and transparency in the
provision of these services, while all the time protecting our
Nation's commitment to religious freedom.
Unfortunately, their work is far from done. The most
egregious aspect of the so-called faith-based initiative, the
right of religious social service providers to discriminate in
employment with government funds, remains unresolved.
One of the founding principles of our great Nation is the
freedom to worship or not worship as one chooses. Faith plays a
central role in the lives of many Americans and our communities
benefit from the countless acts of justice and mercy that faith
inspires people to commit.
Faith-based organizations are all part of the front lines
of meeting challenges like homelessness, youth violence, and
other social programs. At the same time, the history of our
Nation and its First Amendment protections do not and should
not allow public funds to be used to proselytize or
discriminate.
In the 1960's several civil rights acts were passed in
order to end the Nation's sorry history of racial bigotry.
Since that time it has been illegal to discriminate in
employment against protected classes and make job decisions
based on race or religion.
Now, I mention protected classes, and I would like to
respond to the gentleman from--the Ranking Member from
Wisconsin, who mentioned the Planned Parenthood example that is
frequently used. Position on abortion is not a protected class.
There is a difference between Planned Parenthood hiring people
based on their position on some social issue as opposed to,
``We don't hire Blacks,'' or, ``We don't hire Jews.'' Race and
religion are protected classes, and that is what is protected
in our civil rights laws.
One exemption exists for religious organizations but that
discrimination is allowed in the context of a religious
organization using its own money.
Long before that the country recognized the disgusting
practice of discrimination in employment while using Federal
funds.
Almost 70 years ago--1941--President Franklin Roosevelt
issued an Executive order prohibiting discrimination by all
defense contractors. In other words, the U.S. government said
that even if you can build a cheaper and better rifle we are
not going to buy it from you if you discriminate in your
employment. In 1965, President Johnson expanded that policy in
an Executive order banning discrimination in all government
contracts.
No discrimination with Federal funds has been the policy of
this government for decades, at least until the so-called
faith-based initiative. Under traditional laws many religious
organizations have been sponsoring federally-funded social
service programs for over a century. Until recently, they were
funded like all other private organizations are funded. They
are to use the funds for the purpose for which they were
appropriated; they were prohibited from using taxpayers' money
to advance their religious beliefs; and they were subject to
laws that prohibit discrimination in employment.
Let's be clear. Religious organizations can still
discriminate in positions paid for with their own money, just
not those paid for with Federal funds. And many religiously-
affiliated organizations, such as Catholic Charities, Lutheran
Services of American, Jewish Social Services, have been
receiving funds--millions and even billions of dollars--for
decades.
Incredibly, the idea of charitable choice in President
Bush's so-called faith-based initiative came about because some
people insist on discriminating in employment and therefore
were barred from Federal contracts. They now believe that the
prohibition against discrimination with Federal funds
constituted a barrier that needed to be removed.
Unfortunately, the faith-based initiative specifically
removed that so-called barrier, and as a result, religiously-
sponsored--religious sponsors of federally-funded programs are
now allowed to discriminate in employment with Federal dollars
on the basis of religion. That means that a person applying for
a job paid for with Federal money can be ineligible for
consideration for that job solely based on religion.
And if this bigotry based on religion is tolerated, racial
and sexual discrimination disguised as religious discrimination
certainly follows. It doesn't take a rocket scientist to figure
out that if you get a pass on religion it will be impossible to
enforce nondiscrimination laws based on race.
Dr. King once said that 11 o'clock on Sunday was the most
segregated hour of America, and that is still true today. And
so if you discriminate based on religion, based on which church
you go to, that has racial implications.
Religious discrimination is also a proxy for discrimination
based on sex, based on things like single motherhood, or
divorce, or premarital sex. It is shocking that we would even
be having a discussion about whether or not civil rights
practices are to apply to programs run with Federal dollars.
For decades, when funds were raised from all taxpayers it
has been and should continue to be illegal for sponsors to
reject applicants solely because of their religion. There is no
justification for having to--restoring a practice where you can
tell job applicants that, ``We don't hire your kind.''
The so-called faith-based initiative represented a profound
change in policy. Since 1965, if an employer had a problem
hiring the best-qualified applicant because of discrimination
based on race or religion that employer had a problem because
the weight of the Federal Government was behind the victim of
discrimination. But with the faith-based initiative, we shifted
the weight of the Federal Government to support--from
supporting the victim to supporting the employer's right to
discriminate. This is a profound change in civil rights
protections.
And if we don't enforce discrimination laws in Federal
contracts in secular programs, where is our moral authority to
tell a private employer, who may be devoutly religious, what he
can and can't do with his own private money. A policy of
religious discrimination in employment is wrong in the private
sector and it is certainly wrong with Federal funds.
We need to be--unfortunately the Executive order did not
address this profound issue. It failed to address the
employment issue, and we are disappointed that they failed to
present a witness so we can inquire why that was done.
Mr. Chairman, I would like to insert to the record the rest
of my statement----
Mr. Nadler. Without objection.
Mr. Scott [continuing]. And I look forward to the testimony
of the witnesses, particularly in light of the question that we
will have on employment discrimination. And I will yield to the
Chairman of the Committee.
Mr. Conyers. Thank you. I merely want to associate myself
with an excellent statement. I yield back.
Mr. Scott. I yield back.
Mr. Nadler. I thank the gentleman.
Without objection, all Members will have 5 legislative days
to submit opening statements for inclusion in the record.
Without objection, the Chair will be authorized to declare a
recess of the hearing, which we will do in the event of votes
on the floor, but only in such an event.
We will now turn to our panel of witnesses. As we ask
questions of our witnesses the Chair will recognize Members in
the order of their seniority and in the usual order--usual
procedure of this Committee.
I will now introduce the witnesses. Melissa Rogers serves
as the director of the Wake Forest University School of
Divinity Center for Religion and Public Affairs and as a
nonresident senior fellow at the governance program of the
Brookings Institution. In 2009 President Barack Obama appointed
her to his Advisory Council on Faith-Based and Neighborhood
Partnerships. There she chaired the task force on the reform of
the office of faith-based and neighborhood partnerships, whose
recommendations we will be discussing today.
Professor Rogers previously served as the executive
director of the Pew Forum on Religion and Public Life. Prior to
her leadership at the Pew Forum Professor Rogers served as
general counsel of the Baptists Joint Committee on Religious
Liberty, based in Washington, D.C. She earned her B.A. from
Baylor University and her J.D. from the University of
Pennsylvania Law School.
Douglas Laycock is a professor of law and of religious
studies at the University of Virginia. He is a fellow of the
American Academy of Arts and Sciences and the vice president of
the American Law Institute.
Before joining UVA's faculty in 2010 Professor Laycock
served as the Yale Kamisar Collegiate Professor of Law at the
University of Michigan Law School. Prior to that he taught for
25 years at the University of Texas and for 5 years at the
University of Chicago. Professor Laycock earned his B.A. from
Michigan State University and his J.D. from the University of
Chicago Law School.
Reverend Barry Lynn is an ordained minister in the United
Church of Christ and has served as the executive director of
Americans United for Separation of Church and State since 1992.
Along with Professor Rogers, he served on the task force on the
reform of the office of faith-based and neighborhood
partnerships.
Reverend Lynn began his career working at the national
office of the United Church of Christ, including a 2-year stint
as legislative counsel for the church's office of church and
society, in Washington. From 1984 to 1991 he was legislative
counsel for the Washington office of the American Civil
Liberties Union. Reverend Lynn earned his law degree from
Georgetown University Law Center and received his theology
degree from Boston University School of Theology in 1973.
I am pleased to welcome all of you. Your written statements
in their entirety will be made part of the record.
I would ask you to summarize your testimony in 5 minutes or
less. To help you stay within that time there is a timing light
at your table. You have all testified here before; you know
what the light means. When 1 minute remains the light will
switch from green to yellow, and then to red when the time is
up.
Before we begin it is customary for the Committee to swear
in its witnesses. If you would please stand and raise your
right hands to take the oath?
Let the record reflect that the witnesses answered in the
affirmative.
You may be seated. Thank you very much.
I will now recognize Professor Rogers.
Use your mike and speak into it. A little closer to the
mike.
Ms. Rogers. Pull it a little closer, is that better?
Mr. Nadler. That is better.
TESTIMONY OF MELISSA ROGERS, DIRECTOR, CENTER FOR RELIGION AND
PUBLIC AFFAIRS, WAKE FOREST UNIVERSITY DIVINITY SCHOOL
Ms. Rogers. Okay. Thank you.
Thank you, Chairman Nadler, and thanks also to Ranking
Member Sensenbrenner, Chairman Conyers, Representative Scott,
Representative Watt, and the other Members of this
Subcommittee. I appreciate the invitation to be here with you
today and I appreciate your interest in the work of the
Advisory Council.
And I am also grateful for our partnership in years past on
free exercise matters like the Religious Freedom Restoration
Act. It has been wonderful to work with you.
Let me say that I don't speak today for the full Advisory
Council or any of the organizations with which I am affiliated,
but I do speak as one who has long worked on issues related to
partnerships between the government and nonprofits, both
religious and secular. I also speak as a lifelong Baptist and,
as a Baptist, I believe that the mandates to care for our
neighbors and to provide religious freedom for all people are
not only legal, policy, and ethical matters, they are also
scriptural imperatives.
In March the Advisory Council urged President Obama to take
a wide range of actions to strengthen the constitutional and
legal footing of the partnerships that it forms with nonprofits
to serve people in need. And those involved in the council
process have some serious differences on church-state matters,
yet through some painstaking and long periods of work we were
able to reach consensus on some key recommendations.
As you have already noted, yesterday President Obama signed
an Executive order that implemented many of these
recommendations. This order is a major step forward in our
efforts to create more clarity, transparency, accountability,
and constitutional compliance in these partnerships.
Let me just quickly mention, if I could, six of the changes
the Executive order makes. First, the new order says that
beneficiaries have the right to an alternative provider if they
object to their provider's religious character, and the
beneficiaries have to receive written notice of this and other
rights at the outset.
Second, the new order clarifies some fuzzy rules about uses
of direct government aid, making it clear that such aid can't
be used for explicitly religious activities, meaning activities
that contain overt religious content, like prayer, worship, and
proselytizing. The new order also directs an interagency
working group to provide regulations and guidance on the need
to cleanly separate any privately-funded religious activities
from programs that are subsidized by direct government aid. At
the same time, the order makes it clear that religious
providers can retain a religious name and religious symbols in
their building.
Third, the order says government-funded programs have to be
monitored to ensure that church-state rules and other rules are
being followed, but the government must do so in ways that
don't create excessive church-state entanglement.
Fourth, the new Executive order says that the government
must post things like grant and guidance documents on the Web,
as well as lists of nonprofits that receive Federal social
service funds.
Fifth, the order says that decisions about awards of
Federal social service funds must be free of even the
appearance of political interference, and that those decisions
have to be made on the basis of merit and not on religious
affiliation or lack thereof.
And sixth, as I have already mentioned, the order creates
what I think is the first interagency working group to create
uniform policies around these and other issues.
Now, the new order doesn't call for churches to form
separate corporations if they wish to receive direct government
aid, and that is a change that 13 council members, including
me, advocated as a way of insulating churches from government
oversight. Also, as you have already noted in your remarks, one
important issue--the employment issue--was put outside the
council's charge.
But the order adopts key consensus recommendations of the
council, and I believe it is a great achievement, not only
because it does so much to bring these efforts into line with
religious liberty principles, but also because it does so with
the backing of people who have been divided over these issues
for a very long time. As you know, about 15 years ago some
controversial policies started popping up in this area and we
have been fighting ever since; but now we have got some common
ground policies--not on everything, but on some important
matters--and that is an important advance.
As you know, in my written testimony I have addressed the
issue of religion-based decision-making by faith-based groups
in government-funded jobs. As I have already noted, the White
House instructed the council not to address this issue, and it
has said that it is dealing with the issue through a separate
process, one that is not connected to the council process.
It is critical to note that this debate about government-
funded--is about government-funded jobs, not privately-funded
jobs. I fully support the ability of all religious
organizations to make decisions on the basis of religion
regarding jobs that they fund themselves. My Baptist church, or
course, should be able to call a Baptist preacher; and a
synagogue, of course, should be able to call a Rabbi.
But subsidizing jobs with government money changes the
calculus. We have a longstanding tradition--something that has
already been mentioned--of equal opportunity in federally-
funded employment, and I believe that is a tradition that we
should continue.
In my view, it is wrong to allow any religious group,
including my own, to place a religious test on a job that is
funded by a government grant. Because current rules and
policies permit this in some instances I believe this matter
must be addressed. So I want to thank you for the opportunity
to be with you, and I look forward to our discussion.
[The prepared statement of Ms. Rogers follows:]
Prepared Statement of Melissa Rogers
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Nadler. Thank you.
Professor Laycock?
I think you were better off a moment ago, but maybe not
close enough to the mike. Is the light on?
TESTIMONY OF DOUGLAS LAYCOCK, ARMISTEAD M. DOBIE PROFESSOR OF
LAW, HORACE W. GOLDSMITH RESEARCH PROFESSOR OF LAW, PROFESSOR
OF RELIGIOUS STUDIES, UNIVERSITY OF VIRGINIA SCHOOL OF LAW
Mr. Laycock. The green light? There we go. Well, it was on
but it wasn't on brightly enough, turns out to be the answer.
Thank you, Mr. Chairman. It is good to be back before this
Committee.
Let me begin by saying that I am a firm supporter of
separation of church and state, but separation is not an end in
itself; it has an underlying purpose. Separation is not about
aesthetics or mechanics for their own sake; it is not about
taking pictures off the walls or making sure that no government
dollar ever touches anything religious. It is far more
important than that.
The purpose of separation of church and state is to
separate the religious choices and commitments of the American
people from the overriding power and influence of government,
to ensure that Americans and their voluntary associations can
act on their faith or on their lack of faith without government
interfering and trying to persuade them or coerce them to
change their faith commitments or the way they carry out those
faith commitments.
So how do we provide that protection in the context of
charitable choice? As several of the Committee Members
mentioned, government has used grants and contracts to the
private sector for a very long time; it has used both religious
and secular providers for a very long time.
But before the first charitable choice legislation in 1996
there was very little in the way of visible rules to protect
religious liberty. Some government officials liked religious
providers and some didn't, and many of them felt free to act on
those preferences, to discriminate in favor of religion or
against religion.
The charitable choice provisions of the Welfare Reform Act
enacted clear religious liberty principles for the first time.
I can't speak to what the political motivations of the sponsors
were, but the substance of that act stated some very important
religious principles--religious liberty principles--no
discrimination between religious and secular providers, no
surrender of religious identity for the religious providers, no
discrimination on the basis of religion against the recipients
of the services, no coercion to participate in religious
activities, the guarantee of an alternative secular provider to
any recipient who asks for one, audit of the government money
only, as long as it was segregated from the religious
provider's money, no use of government funds to support the
religious activities. Much of that was being written down for
the first time.
The Bush administration Executive orders that expanded
these programs were much less explicit about many of those
protections. Some of them were simply omitted.
President Obama's Executive order yesterday, as Professor
Rogers just summarized, makes the rules explicit for all
programs and it creates a task force to work on further
implementation issues, which is where the real difficult
problems often occur. And that leaves employment as the
principal disputed issue.
The 1996 legislation says, the President's Advisory Council
says, the President's Executive order says religious
organizations with government grants and contracts need not
surrender their religious identity. Nothing--nothing--is more
important to religious identity than the ability to hire
employees who actually support the religious mission and will
faithfully execute it, and if you want to take that away you
are saying the groups--the religious groups that participate in
these programs have to secularize themselves in a very dramatic
way. It uses the coercive power of the purse to force religious
social service providers to become much more secular than they
were.
And we have a longstanding commitment in this country
against invidious discrimination. Mr. Scott called it bigotry,
and that is right. It is against the irrational exclusion of
racial and religious minorities, and people on the basis of sex
in contexts where those criteria are simply not relevant.
If you are a religious organization, religious affiliation
is relevant. It is not about bigotry; it is not about
irrational exclusion. It is about the First Amendment. It is
about assembling a group of like-minded people in pursuit of a
common religious mission and a common activity.
Religion is a protected class but it was never intended to
protect--to make religion irrelevant in religious contexts.
That doesn't protect religion; that doesn't protect religious
minorities. It forces any religious organization, majority or
minority, that participates in these programs to abandon an
essential part of its mission.
The government says, ``Here is a large pot of money. If you
run good programs you can win grants, you can expand your
operation, you can help more people in need, but if and only if
you surrender your right to hire people who support your
mission.'' That violates the fundamental purpose of separation
of church and state.
It uses the power of the purse to coerce religious
organizations to become less religious and more secular, and
that would be a fundamental policy mistake. This Committee
should not try to force the Administration into doing that.
One reason that separationists have historically opposed
government funding of religious organizations is the fear that
regulation and conditions will come with the money and the
religious organization will be corrupted. There is no clearer
example of that sort of corruption than forbidding these
organizations to hire people who actually support their
mission. I think the Administration's failure to act on the
hiring issue is well advised.
[The prepared statement of Mr. Laycock follows:]
Prepared Statement of Douglas Laycock
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Nadler. I thank the witness.
Reverend Lynn?
TESTIMONY OF BARRY W. LYNN, EXECUTIVE DIRECTOR, AMERICANS
UNITED FOR SEPARATION OF CHURCH AND STATE
Rev. Lynn. [Off mike.]--the single most important action
that remains is to undo President Bush's Executive orders and
regulations that permit a religious entity that receives a
government grant or contract to make hiring decisions for the
very programs that are federally funded on the basis of
religion. This is sometimes referred to as preferential hiring,
but it is more accurately labeled simply as discrimination and
it is ethically and legally wrong.
President Obama knew this when he spoke as a candidate in
2008 and affirmed that you can't use grant money to
discriminate against the people you hire on the basis of their
religion, and I would say the American people know it as well
and that is why 73 percent of Americans polled that same year
said that a religious group that wanted to engage in
discriminatory hiring should not get tax dollars at all. It is
terribly wrong to reject the best-qualified person for a
secular job at a faith-based institution because he or she does
not pass a religious litmus test.
In my experience a Baptist does not ladle out rice in a
soup kitchen differently than does a Buddhist. A Catholic does
not tuck in the sheets at a homeless shelter in a way that
differs from how it would be done by a Quaker.
Some who lead religious organizations wouldn't call what
they want to do unethical or illegal, or even wrong. They
simply say they are more comfortable working with people who
believe as they do--people like themselves.
Many of us have heard all that before. We heard it about
race; we heard it about gender. But level of comfort is not a
constitutionally permissible basis for selecting what job
another person can seek.
Discriminatory hiring has very real consequences. Saad
Mohammad Ali, a refugee from Iraq, had volunteered for 6 months
at the charity World Relief up in Seattle. A coworker suggested
he apply for a paid position as an Arabic-speaking caseworker.
Just days later he was called and told not to bother applying
because he was, after all, a Muslim and not a Christian.
If World Relief were funded entirely with private dollars
it would be allowed to make such judgments under Title 7 of the
Civil Rights Act. Many of us might not like that but that is
what the law permits.
But when a religious entity gets dollars from taxpayers--
the taxpayers whose beliefs range from atheism to
Zoroastrianism, from A to Z--the calculus quite properly
changes. The civil rights framework of our country comes into
play and such discrimination must be legally impermissible.
I don't want to impair the religious character of any
church, or temple, or synagogue, or charitable group. But the
free exercise of religion is not burdened when a group
voluntarily accepts government funds knowing that it contains
constraints on certain religiously-motivated conduct like
hiring only your own followers.
The First Amendment to the United States Constitution is
not an excuse to refuse to play by American rules when you are
playing with Americans' dollars. And the rules at the Federal
level do matter all over this country.
A state-funded Methodist social service agency in Georgia
felt that it had the right to deny a man named Alan Yorker a
job as a psychologist. What had he done? He filled in his job
application with the name of his Rabbi and his synagogue in the
spaces marked ``pastor'' and ``church'' and then was told, ``We
don't hire people of your faith.''
Mr. Yorker filed a lawsuit. It has been settled in his
favor.
Some members of the President's Advisory Council claim that
if we ``burden religious providers with hiring rules they will
not accept government funds and this will reduce their ability
to help people in need.'' This sometimes, to me at least,
sounds more like a threat than it does a moral rationale.
Indeed, if World Vision, which refuses to hire non-
Christians, refused to take the $343 million worth of
government grants it receives there are dozens of other
charities, religious and secular, eager to apply for those
grants. Most religious charities have always hired the best
people they could find to work out their social missions
without asking them to swear allegiance to any specific
religious creed and they would continue to do so.
Prohibiting discrimination on the basis of religion
requires relatively simple action. Congress can do it with a
few lines of statute or the President with a short Executive
order undoing that wrong initiated less than a decade ago.
This is not hard. It is not reform of the health care
system. It is not extricating the United States from
Afghanistan.
It is, Mr. Scott, not rocket science.
It is simple justice. Thank you.
[The prepared statement of Rev. Lynn follows:]
Prepared Statement of Barry Lynn
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Nadler. I thank you, Reverend Lynn.
We have two votes on the floor. We have 4 minutes and 28
seconds remaining but that is congressional time; we will have
a little more time than that.
So there is about 5 minutes remaining on this vote, 5
minutes on the next vote, and then I ask the Members of the
Committee to return as soon as possible after that second vote.
And meanwhile, I will declare the hearing in recess.
[Recess.]
Mr. Nadler. The hearing will reconvene and I apologize to
everyone for that delay. Hopefully it won't occur again, but it
might.
I will begin the questions by recognizing myself for 5
minutes.
First, for Professor Rogers, you testified that the Supreme
Court has never interpreted the free exercise clause to prevent
the government from placing nondiscrimination conditions on
grants to or contracts with religious organizations, including
the requirement that providers abide by longstanding
commitments to equal opportunity in federally-funded jobs.
Professor Laycock and the Office of Legal Counsel contend that
the Religious Freedom Restoration Act, RFRA, compels a
different result.
Congress was very clear that the purpose of RFRA was to
restore the pre-Smith application of--that is--I don't think I
have to explain to this audience what Smith was--the pre-Smith
application of strict scrutiny to free exercise claims. If,
under the pre-Smith application of strict scrutiny restored by
RFRA, the government could place a nondiscrimination condition
on grants how is it possible that RFRA compels a different
result?
And let me add that many of us have urged the Obama
administration to review the OLC opinion on this. When they do
so, do you see any grounds for them to uphold that opinion or
should it be revised or withdrawn?
Ms. Rogers. Yes, Chairman Nadler. Thank you for that
question.
I believe that the opinion--the World Vision opinion--that
the Department of Justice----
Mr. Nadler. Would you speak closer to your mike?
Ms. Rogers. Sure--that the Department of Justice offered
should be reconsidered, and in my view it should be withdrawn
because in my view it incorrectly interprets the burden prong
of the Religious Freedom Restoration Act, finding that the
requirement that a nondiscrimination provision in the RFRA--in
the actual grant cannot flow, or cannot be placed on the
recipient because of RFRA. The opinion says that that is a
substantial burden, and I just think they got that wrong.
Mr. Nadler. You think that is not a substantial burden?
Ms. Rogers. I think it is not a substantial burden. It is a
government grant that applies to--the nondiscrimination clause
applies to positions that would be within the government
program, but it doesn't apply to positions that would be
outside the government program and privately funded, so there
is certainly a lot of latitude there. And it is something that
an organization could take the grant or not take the grant.
They are under no duress to take the grant and if they don't
agree----
Mr. Nadler. And the necessity not to take the grant would
not be a substantial burden?
Ms. Rogers. Not taking the grant would not be a substantial
burden, yes. I agree with that.
So my view is that that opinion incorrectly interpreted the
burden analysis, and so I do hope that the Department of
Justice will reconsider that opinion and withdraw that
particular opinion.
Mr. Nadler. And the first part of my question, which was
the--that under pre-Smith application of strict scrutiny
restored by RFRA it was always assumed at that time that the
government could place nondiscrimination conditions on grants.
How can RFRA compel a different result?
Ms. Rogers. I don't believe that RFRA does compel a
different result, and Chairman Nadler, you were a leading
Member and very active in the RFRA debate, and I think what was
true of that coalition that passed RFRA, which was so broad, is
that there were different opinions about matters like these
that we had to say, I think, that these matters would be
unaffected by RFRA.
Mr. Nadler. I agree. I should say the legislative intent
has sometimes--I once lost a lawsuit in the New York State
courts on the legislative intent of a statute that I was one of
the principal authors of, so you never know.
Professor Laycock, you testified that protecting the right
of program beneficiaries by the guarantee of a secular
alternative to religious providers is fundamental to these
programs. I think that is a direct quote from your testimony.
Does that requirement have constitutional dimensions? That
is, is it required by the free exercise or establishment
clause, in your opinion?
Mr. Laycock. There is not a Supreme Court case directly on
point, but yes, I think the requirement of a secular
alternative is of constitutional dimension. The government
cannot force recipients into a religious alternative as the
only alternative available.
Mr. Nadler. So you think it is of constitutional--so your
answer is yes?
Mr. Laycock. My answer is yes.
Mr. Nadler. And what are or should be the consequences if
we cannot ensure alternatives in that case?
Mr. Laycock. Well, I mean, the premise of that question is
ensuring the secular alternative is difficult. It takes some
money and it takes some planning. And if you have a beneficiary
request a secular alternative and doesn't get it you have got a
constitutional violation.
Well, then what is the remedy for that violation? I don't
think it is to shut down the entire program. I think you have
to have a remedy focused on that individual--on that
individual----
Mr. Nadler. Well, what would be the remedy? Not to shut
down the entire program--is there a different remedy?
I mean, we are in a situation where obviously funding is
tight; it is going to be tighter in the next few years or
decades. So what would be the remedy if it is unconstitutional
not to have a secular alternative?
Mr. Laycock. The remedy is for the court to order the
agency to fund a secular alternative, and if that turns out to
be flatly impossible on the ground then I don't know where we
are. But the remedy is to create the secular alternative.
Mr. Nadler. Which, yes, okay. So, in other words----
Mr. Laycock. And I would think, sir, in an individual case
it is always going to be possible. What is difficult is to do
it in a structural manner so that we can be confident it is
always going to be there for any beneficiary in the----
Mr. Nadler. All right. Now, in effect you are saying that
one solution is to--to concerns about religious discrimination
in federally-funded jobs is simply to fund a diverse range of
employers. Some will discriminate based on religion, some will
not, so there is an alternative available.
Setting aside other possible objections, how do we square
this with the consensus position taken, I believe, by everyone
in the witness table today, by the Bush administration, by the
Advisory Council, and by the new Executive order, that the
government absolutely should not consider religious affiliation
or lack of affiliation when making grants and distributing
funds? Doesn't this solution actually require consideration of
affiliation and beliefs in order to make sure they have some
with and some without?
Mr. Laycock. No, I don't believe it does. I think
connection runs the other way, that when the government says,
``You have to secularize your hiring in order to be eligible,''
that is very similar to saying, ``We only consider secular
providers.'' And I think the logic of these programs is, you
know, award the grants without regard to religion and on the
basis of the merit of the programs. The distribution of the
grants won't be perfectly even but it will be----
Mr. Nadler. But how do you--what I don't understand is how
do you figure out that some of the groups that you are going to
be funding are not going to discriminate so that you have
alternatives, knowing that some will, if you don't ask and if
it is impermissible to ask?
Mr. Laycock. The premise of the program is you award the
grants on the basis of merit, and you assume that in the real
world that will result in some kind of a distribution, that it
is not going to be the same group getting the grant every time.
And if it is then we want to check whether the funding agency
is really awarding on the basis of merit or whether----
Mr. Nadler. Some group may really be meritorious--others.
Mr. Laycock. Pardon?
Mr. Nadler. It is always possible that some group really is
so meritorious that it gets all the grants.
Mr. Laycock. It is possible. It is possible. But I think
our experience has been that generally you get a distribution.
Mr. Nadler. Well, let me ask you one last question. Would
the unavailability of nondiscriminating employers or the lack
of jobs at those employers change the results? And do
prospective employers have to relocate or take lower-paying
jobs and would this violate the principle of alternative
employers?
Should I repeat that?
Mr. Laycock. Well, I think we have moved from the principle
of alternative providers for beneficiaries to alternative
employers for job seekers, and----
Mr. Nadler. I thought we were talking about that.
Mr. Laycock. Well, let's review the bidding and make sure
we haven't missed any---- [Laughter.]
I said I think it is a matter of constitutional principle
that the beneficiaries of this program, the recipients of the
services, have a secular alternative----
Mr. Nadler. Yes, okay.
Mr. Laycock [continuing]. Available so that they are not
forced into a religious provider against their will.
With respect to employment----
Mr. Nadler. It is a different question.
Mr. Laycock.--I don't think they are guaranteed a
federally-funded secular employer of their choice. I think as a
practical matter if we award the grants and the contracts on
the basis of merit there will be a diversity of federally-
funded private sector employers out there. But I don't think
that job seekers get guarantees in the way that the
beneficiaries----
Mr. Nadler. Thank you. My time is long expired.
I now recognize the Chairman of the full Committee. Oh,
Chairman defers. I will recognize the gentleman from Virginia,
Mr. Scott.
Mr. Scott. Thank you, Mr. Chairman.
You know, one of the things that is confusing me on this
secular alternative is what is going on in the program that
requires an alternative?
Reverend Lynn?
Rev. Lynn. I think that is an excellent point. One of the
things that I disagree about in regard to the Executive order
yesterday was the determination that religious icons and
symbols do not need to be removed from the wall. On the other
hand--on a wall where a federally-funded service is being
provided.
I just find it unusual that you cannot, under the
regulations--presumably if they will be promulgated after the
Executive order--that you cannot use these government funds to
proselytize or to evangelize but it is perfectly acceptable to
have them occur, whether that is a counseling session or a
hunger program, in a place that contains the very symbols,
icons, and statements of the faith. I mean, what could be more
of an evangelistic opportunity than to put up a quote from the
Christian Bible suggesting that Jesus is the only way to
salvation, and to have that appear on the walls of a federally-
subsidized program of any kind?
I think that is a fundamental problem. If you have a person
who does not want to have a religious provider then it seems to
me that you must guarantee, and there has to----
Mr. Scott. If the provider happens to be of a certain
religion and the beneficiary just doesn't like that religion
and it is a secular program can he say, ``Well, I don't like
that provider's religion. I don't want somebody of that faith
counseling me on my drug problem. I want somebody of another
faith''? Is that a legitimate complaint?
Rev. Lynn. I think it is a legitimate complaint, and I
think it is even more legitimate----
Mr. Scott. I mean, this doesn't have anything to do with
faith-based; I just don't like the man's religion.
Rev. Lynn. Well, but I think that the----
Mr. Scott. Secular program, right?
Rev. Lynn. Yes, but the beneficiary may well understand,
particularly if he or she is in a room----
Mr. Scott. Well, you are talking about is it--I mean, if it
is a secular program and it is run as a secular program and you
just don't happen to like--you just found out the guy's
religion is one you don't agree with, ``I want someone of
another religion.'' I mean, there used to be a time when
hospitals, you know, ``I don't want a doctor of that race.''
You know, what I mean, is this--if it is a secular program
run appropriately--Professor Laycock, if you have got a secular
program run appropriately without the proselytizing what is the
complaint?
Mr. Laycock. Well, if you wholly secularize the religious
providers then I think----
Mr. Scott. No, the program, not the provider. I mean,
people have--people will come in with their religion. You have
a program that is a secular program if you are suggesting that
things are going on that are actually proselytizing then you
have got another problem. Not just the alternative, you have
got another problem.
Mr. Laycock. As I understood the idea for these programs
back in the beginning--and there has been some substantial
evolution since 1996--but as I understood the point back in
1996 the program had to provide the secular service that the
government was willing to pay for and had to provide it----
Mr. Scott. Well, let me tell you, back in 1976 the bill--
the original bill--allowed the program to require, as a
condition to participation, that you take Communion and come to
Wednesday night prayer sessions.
Mr. Laycock. But you got that fixed before it was enacted.
Mr. Scott. Okay, well yes. That is right. And we think we
got it fixed so that there is no proselytization.
Mr. Laycock. But what it said was, ``Government funds
cannot be used to pay for proselytization.''
Mr. Scott. Okay.
Mr. Laycock. And one form of implementation that would have
been consistent with that 1996 legislation would have been to
say, ``The secular part of the program is paid for with
government money; religious add-ons to the program were paid on
with--paid for with private money, but they don't have to be
cleanly separated.''
Mr. Scott. Well, yes they do--well, when we passed
legislation out of this Committee it did have to be cleanly
separated so that you could participate in the government-
funded programs without any proselytizing added on, because as
a matter of fact, the concern was the original bill said ``paid
for with government money,'' which opened the opportunity for
the youth choir director to come in and--volunteer to come in
and lead the group in praise and prayer. We made sure that that
was not possible. The program had to be secular.
Mr. Laycock. I understand that. In the intervening years we
have added the separation requirement that any religious add-
ons have to be separate in time or separate in space. That may
well have been a mistake, but that is what we have done.
Mr. Nadler. Excuse me. That add-on may have been a mistake
or the original may have been a mistake?
Mr. Laycock. The requirement of separation may have been a
mistake, but that is the direction we have gone in. And that
does reduce the need for the secular alternative. I don't think
it eliminates.
If we can still have religious art on the walls--and I
don't think we should take it down--then the beneficiaries have
a reasonable religious objection to that. They can still be
invited to the separate program that is going to occur later in
the day and they may not want to deal with that, but you are
right. The more we secularize the program the less----
Mr. Scott. So your assumption is that--your assumption is
that there is still some proselytization going on in some of
these programs for which you need an alternative.
Mr. Laycock. Well, there may be some proselytization going
on----
Mr. Scott. Let me get on another question because--let me
get on another question.
Reverend Lynn, you mentioned Dr. Yorker, the psychologist
who couldn't get a job at a program because of his religion. It
is my understanding that the faith-based office is treating
discrimination cases on what they call a case-by-case basis,
whatever that means.
Can you explain how a--there is only one drug counseling
program in the area; it is run by a faith-based organization
that is discriminating. How does Dr. Yorker get a job as a drug
counselor anywhere in the county? Or does his religion
essentially eliminate any possibility of employment in a drug
program?
Rev. Lynn. I think the answer is that he is unlikely to
find any job in that county----
Mr. Scott. Because of his religion?
Rev. Lynn [continuing]. Because of his religion. And this
could be a county-wide phenomenon or in entire states one could
imagine a condition where he could not find a reasonable job if
those would-be employers, including the religiously-based ones,
are allowed to discriminate on the basis of religion.
As far as the case-by-case review, we have repeatedly asked
the Administration, the Justice Department, to explain what
this case-by-case review is. But a case-by-case review that
results in permitting discrimination in some cases but not
others--if that is happening we have no standards, there are no
written documents, there are no rules about how this is being
applied. I don't think you can have a case-by-case evaluation
if some cases lead to saying no on the basis of religion to
that job seeker.
Mr. Scott. And, Mr. Chairman, if I can just get one thing
on the record from Ms. Rogers--Professor Rogers, prior to 2001
or late 2001 the Bush Executive order, which changed the
Johnson Executive order, that constituted a change. Is it true
that before then if you get a Federal contract you could not
discriminate based on religion?
Ms. Rogers. Yes. That was the 1965 Lyndon B. Johnson
Executive order that related to contracts and was amended by
the Bush 2002 Executive order.
Mr. Scott. After 2002, if a faith-based organization is
running a program, what legal prohibition is there against
discriminating openly and notoriously on the basis of a
person's religion?
Ms. Rogers. Well, for that you would have to look at the
program at issue because there are different statutes. For
example, a charitable choice statute would allow that----
Mr. Scott. If there is no specific prohibition against
discrimination in the program----
Ms. Rogers. No overarching prohibition against
discrimination? In some programs there are conditions that are
like the one that is at issue in the World Vision case where
the Justice Department issued a memo. There was a
nondiscrimination provision that related to employment in that
particular program. But other programs contain charitable
choice provisions that would allow the discrimination and so we
have----
Mr. Scott. Or they are silent.
Ms. Rogers. Or they are silent, yes.
Mr. Scott. And in that case a program can have a practice
of discriminating against persons in employment solely based on
religion?
Ms. Rogers. Yes. In those cases where it is, you know--
there is a charitable choice statute, for example, they could.
Mr. Scott. Or if there is no specific prohibition?
Ms. Rogers. Well, I suppose that you would have to take a
look at regulations and see what is there, but it is
conceivable that that might be the case.
Mr. Scott. And so a person applying for a job paid for with
Federal money can be told, ``We don't hire people of your
faith,'' just like Mr. Yorker was told. That would be legal in
those programs?
Ms. Rogers. If it was a religious group and they had the
clearance--the charitable choice-type language--then they would
be able to make those decisions on the basis of religion with
regard to federally-funded jobs.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Nadler. Thank you.
I now yield 5 minutes to the gentleman from Arizona.
Mr. Franks. Well, thank you, Mr. Chairman.
And thank you all for being here.
Mr. Chairman, I think one of the challenges we have in a
situation like this is that there are organizations out there
that seem genuinely committed to trying to erase any sort of
religious expression from American life, and I am not going to
try to make that case here this morning but I believe it is
part of the issue. I wrote a bill here about 15 years ago that
passed in the Arizona legislature that simply allowed people--
private individuals on a voluntary basis--to contribute to a
scholarship fund for children to go to a school of their
parents' choice. And that is private dollars that never touched
the public coffers whatsoever.
And the rub came in when some of those parents chose a
religious school for their child. And of course, the ACLU, and
Mr. Lynn, and others sued us in the Federal courts for the last
15 years--last 12 years. And oral arguments were heard in the
U.S. Supreme Court here about 2, 2\1/2\ weeks ago.
And I think the Supreme Court will uphold the Arizona
provision because otherwise they would be saying that every
dollar in everyone's pocket is public money. That is exactly
what the ACLU is arguing, that that is public money simply
because it is subject to a tax credit.
I am wondering how long it will be before the ACLU argues
that money given to a church, because there is special tax
treatment involved there, that it is deductible, that that
money is also public money and that the church, if you are a
Jewish synagogue, that you have to hire a Baptist to be your
counselor for young marrieds. I mean, it just--the
possibilities are endless.
And as we all know by now, that yesterday President Obama
issues a new Executive order dealing with the White House
office of faith-based and neighborhood partnerships, but it was
silent as to the degree to which religious entities could
continue to enjoy the freedom of association through hiring.
Now, the order's lack of clarity has breathed a new life into
what was once an otherwise long-settled question of whether
grant recipients can hire and fire based on religious
association.
For 50 years our courts have said yes, but our current
Administration officials have said that those questions will be
answered on an ad hoc basis. I don't know how a religious
entity can possibly know what is permissible and what is not
permissible under the Administration's ad hoc approach.
I mean, ad hoc is sort of synonymous with ``making it up as
you go,'' and I think this violates the basic notions of due
process. I mean, King George was famous for his ad hoc approach
to almost everything.
So I guess, Mr. Laycock, my first question here, before I
get too exercised, is, is the Administration's ad hoc policy a
clear victory for those, if there are such groups, that would
seek to deny religious entities the right to associate with or
employ only those who share their religious beliefs? I mean, do
you think that is a victory for those groups that want to
remove that liberty to religious groups?
Mr. Laycock. No. I think it is postponing the issue. And
none of the three witnesses like case-by-case or ad hoc, all
right? Professor Rogers and Reverend Lynn would say you can
never hire on the basis of religion if you have a Federal
grant, and I would say you can.
There is some room for case-by-case. There may be some jobs
where, you know, where this is a determining issue, where it
doesn't really look like a burden, but I think most of the
three of us believe--all three of us believe that in most cases
there is a clear rule one way or the other, and the
Administration's case-by-case approach seems to be a way of not
having to make that hard choice.
Mr. Franks. Yes. Well, obviously I couldn't agree with you
more, and it frightens me to death that there is a consensus on
this point, but I am grateful.
I guess my last thought, Mr. Chairman, is that this is a
pretty important area that we are dealing with, and it is my
judgment that the ability to have a private donor intervene in
the protocol here is the best approach--in other words,
allowing individuals to give to these things and then get an
even more powerful tax advantage than just deduction because
this takes these burdens off of government and puts them in a
situation where private individuals can vet these groups much
better than government seems to.
And I think that it kind of builds a firewall here that
would probably make both sides a lot happier. Now, it depends
on how the Supreme Court comes down on this case from Arizona,
but I think that might be some--I don't know, you know, I don't
know if I dare think that the ACLU would be happy with that
since they are suing us in Federal court right now on it, but I
think that we have to do something like this because otherwise
we are going to say that, you know, anything that--within the
shadow of the American flag can't be religious, and I think
that that would undermine everything that the country--at least
the ideals that catalyzed it in the first place.
My last thought, then, Mr. Laycock. Don't you think that if
this ad hoc approach happens that there are going to be a lot
of litigation and arguments over it because of the lack of
clarity, and how will the cost of litigation be borne, and
would those principles be--would some forebear on those
principles until it was decided in court, and wouldn't this be
a pretty serious chill on the basic freedom of association for
religious entities that couldn't find the financial ability to
fight the Obama administration to protect their rights?
Mr. Laycock. Well, the litigation would most commonly come
in the form of an employee suing a religious agency for not
hiring them or not promoting them and if the employee wins the
agency has to pay the employee's attorneys fees. There has been
remarkably little of that litigation.
Folks who don't get hired tend to go on to the next job and
not to file lawsuits so that most employment discrimination
litigation is about promotions and discharges or pay rather
than about hiring. So, so far the litigation burden has not
been bad.
Mr. Franks. Well, Mr. Chairman, I think that is great but I
think that the ad hoc rule of the Administration is an open
invitation for everybody just to sue because it is Friday. And
so with that, I will yield back.
Mr. Nadler. I thank the gentleman.
I now recognize the gentleman from North Carolina.
Mr. Watt. Thank you, Mr. Chairman.
I think Mr. Franks and I have found some common ground
here--maybe not in the consequences of what this rule will lead
to. Our concern is that it will lead people to--groups to
discriminate and take their chances because, as has been
indicated, seldom do even--do people file lawsuits.
They, in most cases, don't even know they have been
discriminated against. They don't find out. It is not
articulated as clearly as the case the Reverend Lynn described.
So I am with you on that. I think all three witnesses seem
to be with you on that. It seems to be delaying a very
difficult choice for the Administration, and I want to come
back to that.
But first of all, I want to welcome Professor Rogers. Not
that I don't welcome the other two gentlemen also, but
Professor Rogers is from Wake Forest University Divinity
School, and at least a part of Wake Forest University is in my
congressional district--not all of it. I am not sure where the
divinity school is located so I am not sure whether you are in
my district or not in my district, but since all politics is
local, I want to make sure I welcome either my constituent or
my near-constituent.
Ms. Rogers. Well, thank you. I can solve this because I
actually live in Falls Church, Virginia, but teach classes that
meet in Washington and in North Carolina.
Mr. Watt. So she is not my constituent. I take back my----
[Laughter.]
Ms. Rogers. I appreciate your welcome nonetheless and will
bring it back to my----
Mr. Watt [continuing]. Take back my special welcome and
welcome all three of you on an equal footing in that case.
But I do appreciate you extending your wisdom to Wake
Forest, and I am sure the folks at Wake Forest University
appreciate it.
Let me come back to this issue, because Professor Laycock
actually said the Administration seems to be avoiding a
difficult decision. It went out of its way, apparently, to take
this issue of employment out of the jurisdiction of the
commission that was set up.
Professor Rogers, you are on that commission. Am I missing
something here? I mean, what is up with the Administration
delaying a difficult decision? I mean, either you can
discriminate or you can't discriminate, and I don't know that
allowing it to happen on a case-by-case basis or evaluating it
on a case-by-case basis--I am with Mr. Franks on that.
What was the rationale for taking that part of this from
the commission's portfolio?
Ms. Rogers. Well, there wasn't a lot of discussion about
it, but--from the Administration to us--but they were aware, of
course, of, you know, a lot of the law in this area and felt
that it was important for them to make this----
Mr. Watt. Okay. Well, now, this Administration has been in
power now for 2 years. Is there any indication of when they
will make this decision? You know, I am----
Ms. Rogers. I have no information on that.
Mr. Watt. Okay.
Ms. Rogers. No more than you do. I will say that people on
the council--there were some of us who really wanted to address
this issue within the context of the council; there were other
council members who didn't want to, and some in between. So
there were different feelings about that, but the
Administration decided it would handle it through this separate
process, and I don't have more----
Mr. Watt. What is the separate process?
Ms. Rogers. I have no information.
Mr. Watt. Does anybody on this panel know what the separate
process is?
Reverend Lynn?
Rev. Lynn. We, along with 57 other groups, have written to
the attorney general that followed up on this question of when
this policy will be discussed, when this Office of Legal
Opinion memorandum will be reviewed, and I hope repealed, and
we have had no luck whatsoever in moving them forward toward an
answer, much less a change in the policy. And it is deeply
disappointing.
Mr. Watt. Okay. Well----
Ms. Rogers. Representative Watt, I was just going to say
that, if I may, that issue is very important in my mind, and
obviously in yours as well. I do believe, though, that the
Executive order and the recommendations that the council did
make on a range of other issues are very important----
Mr. Watt. Oh, yes. I am not diminishing the value of the
commission's work. I am just----
Ms. Rogers. I didn't think you were, but I just wanted to
raise those again because that was quite a bit of work and kept
us very busy and was something that we feel very strongly
about, these other issues. Now, the council itself--the
membership of the council--would divide on the employment
issue----
Mr. Watt. Now, am I clear, Professor Laycock, that you are
in a different position on how that issue ought to be resolved
from the other two members of this panel?
Mr. Laycock. Yes, sir.
Mr. Watt. You believe that, using government money, a
religious institution should be able to discriminate based on
religion.
Mr. Laycock. Yes. Yes, I believe we should not use the
government money to force the religious organization to change
its----
Mr. Watt. So if the objective of an afterschool program is
to get kids to perform better and there are two applicants, one
of whom is clearly superior to--in achieving that objective--a
teacher, long experienced in achieving that objective--the
other one has no experience but happens to be a member of the
particular faith, you think it is fine for that employer to
select the person based on that person's faith?
Mr. Laycock. Well, in that example it probably isn't.
Recall the----
Mr. Watt. Well, you know, either--we got a black or white
rule here. That is what all of us have been advocating for a
rule----
Mr. Laycock. More than one rule.
Mr. Watt [continuing]. And I agree we need a rule. You
can't have it both ways. You can either discriminate or you
can't discriminate.
Mr. Laycock. You can discriminate, but the----
Mr. Watt. You said you believe that they ought to be able
to discriminate.
Mr. Laycock. The organization also has to win the grant on
the merits. It has to be the best at delivering the services.
And if it is hiring unqualified people it is not likely to win
many grants.
So the realistic comparison we are talking about for
groups----
Mr. Watt. So you would take a----
Mr. Laycock [continuing]. A few relatively qualified
people, one of whom also supports the mission and----
Mr. Watt. Let's change the equation, make sure that it is
clear. This person has no qualifications but happens to be a
Baptist or--and this is a Baptist program--Baptist-run program.
You think the--using Federal dollars we ought to support
allowing them to use Federal dollars for that purpose?
Mr. Laycock. Yes, but only so long as they are the best at
providing the service. And your hypothetical doesn't exist in
the real world. They are not going to be the best----
Mr. Watt. That is not a trick question. I am just----
Mr. Laycock. I understand.
Mr. Watt [continuing]. Just trying to be clear on--either
one of the other two witnesses agree with that?
Rev. Lynn. I certainly don't agree with that----
Mr. Watt. Okay. I think I got that from your testimony.
What about you, Ms. Rogers? You equivocated a little bit
more than Reverend Lynn did. What about you, Professor Rogers?
Ms. Rogers. Yes, I disagree. I believe that when it is
involving private money--the religious organization's own money
given by tithes and gifts of the people that subscribe to that
faith--then there should be full freedom to make religion--
religious calls on who is hired. Of course, Baptist churches
should be able to hire Baptist preachers, as I said at the
outset. But the money--direct government aid--changes the
calculus.
Mr. Watt. Okay. All right.
Again, I am not--you know, I am just trying to make sure we
get the record----
Ms. Rogers. Right. And I would say that also that
positions--an organization--a religious organization could
receive a government grant and I think it should not be able to
make religious calls on the positions that are subsidized by
that grant money, but it is positions that are outside, that
are privately funded, then they should be able to make
religious calls on those positions even though they are still
getting a government grant. I just wanted to----
Mr. Watt. I don't know how you are going to do that, but--I
mean, money is fungible, and unless you set up two separate
organizations I don't think you can do that. But, you know,
again, this is not intended to create an overarching debate. I
am just trying to get this specific principle and where these
three witnesses come out on this.
And so my time has long since expired so I will----
Mr. Laycock. If I might add, sir, very briefly, it is also
fairly common to have employees who are paid 50 percent on the
grant and 50 percent with other funds.
Mr. Watt. So you would allow them to discriminate 50
percent of the time, or----
Mr. Laycock. I would allow them to hire people who support
their mission and preserve their religious identity.
Mr. Watt. You sound as wishy-washy as the Administration on
this.
Mr. Laycock. I would allow them to hire. You call that
discrimination, I call that--that is what religious
organizations do.
Mr. Watt. Yes. Well, I agree. They do, and I actually
sanction them doing it with their own money. I just can't
sanction them doing it with taxpayer money, so that is the
divide. I mean, we are not--we are all adults here.
I yield back.
Mr. Nadler. Thank you.
I just observed that with what Professor Laycock just said,
then you have not the 50-50 situations but the round situation,
for instance, where 950 employees were paid 95 percent with
Federal money and 5 percent with non-federal money, which
perhaps presents a different aspect of the case.
That concludes our----
Mr. Conyers. I don't think so.
Mr. Nadler. I am sorry, I didn't--the Chairman of the full
Committee.
Mr. Conyers. Thank you very much.
I wanted to ask Chairman Bobby Scott if he had an
observation that he wanted to weigh in on before I began.
Mr. Scott. Do we have a definition--is there somewhere
where there is a definition of what faith-based means? I mean,
you kind of know it when you see it if it is a church, but if
you just have a bunch of people who declare themselves to be
religious are they exempt from civil rights laws under this
theory?
Rev. Lynn. In general, if one declares oneself to be a
church, for example, you are presumed to be a charitable
501(c)(3) organization, and many churches never strictly apply
for that; they are----
Mr. Scott. Well, I mean, for the purpose of this law, if a
bunch of us get together, happen to be the same religion, can
we declare ourselves a religious organization and therefore
exempt because we just feel so strongly--we just don't want to
hire people of that religion?
Rev. Lynn. I think that is perfectly permissible under the
rules that are still in effect from the last Administration,
unchanged by this one.
Mr. Scott. Okay. The other question is, can you tell--just
for the record, what is the law--present law on direct
contracting with religious organizations and how it differs in
this context with a voucher situation?
Can the Federal Government contract with a church to
provide services, and has that always been the case or has
there been an evolving standard? And does the fact that it is a
voucher where the beneficiary is actually making the choice
make a difference in the proselytization that is going on in
what would essentially be a federally-funded, or at least
partially federally-funded, program?
Ms. Rogers. Congressman Scott, that was one issue that we
asked in the Executive order. We asked the Administration to
opine on because we couldn't agree, in the Advisory Council,
about that. Some in the Advisory Council would cite the school
voucher decision--the Zelman decision from 2002 that upheld the
fact that there can be some programs that include religious
schools in them where people can use the voucher at the
religious school----
Mr. Scott. But the choice is the parents'; it is not the
state's.
Ms. Rogers. Right. That that breaks the circuit in the
Supreme Court's view between the connection between church and
state and thus makes it permissible in their view. Some believe
that that decision applies and makes it so that you could take
a social service voucher to a drug rehabilitation program and
allow--that program could include, you know, part of the way
you get off drugs is to accept our ideas about Jesus Christ and
what he can mean for your life----
Mr. Scott. And that is with a voucher. But can you have a
direct funding of a religious organization directly----
Ms. Rogers. With that type of content you could not. Now,
let me say that some of us would disagree with that reading, or
at least question the indirect application in the social
service voucher context, that there might be some differences
between the school voucher context and the social service
voucher context.
When it comes to direct aid what we have said--what the
Administration has said in the Executive order and what we said
in our recommendations was that programs that are funded by
direct aid cannot have religious content. That is, they cannot
include worship, prayer, religious instruction, any of that----
Mr. Scott. Or anything that would provoke someone from
wanting an alternative service?
Ms. Rogers. Well, your question earlier, I think, that it
is clear in the Executive order that that program that is
funded by direct aid has to be free of explicit religious
content, but a beneficiary might feel that if they don't want
to enter a church for some religious reason, or perhaps for a
non--you know, they just object to having to go to a church, or
to go into a room, or go into a building that has religious
symbols and the like, so we wanted to make sure that we
provided that notice of that right for that kind of person,
even if there isn't religious content in the direct--the
program that is funded by direct aid, that they would have a
secular alternative if they want one.
Mr. Conyers. Thank you. I am so sorry that my colleague
from Arizona isn't with us, Trent Franks, but he will, of
course, hear about this. But his claim that for 50 years the
courts have said religious organizations can discriminate in
employment based on religious stands a little bit closer
scrutiny.
As a matter of fact, the only way that could possibly apply
is to privately-funded religious activities. But that does not
apply when you are talking about taxpayer-funded activity.
Do you agree, Reverend Lynn?
Rev. Lynn. I certainly do. I have no idea what cases you
could cite over a 50-year period that reached the conclusion
that Congressman Franks has reached. And in fact, there is very
little hard, black-letter law on this matter, very few cases.
There is certainly not 50 years in the direction that Mr.
Franks has discussed. It simply is not there.
Mr. Conyers. And I wanted to welcome you. I noticed my
colleague, Mr. Watt, welcomed Professor Rogers. I would like to
welcome you, only the law school you went to isn't anywhere
remotely near my congressional district, but I do it anyway.
Rev. Lynn. Well, I appreciate that. I have spoken at law
schools in your district.
Mr. Conyers. That is pretty close.
Do you agree with this discussion, Ms. Rogers?
Ms. Rogers. Yes. I don't know what his citation to a 50-
year precedent is--I am sorry he is not here to answer that
question. I don't know what he was referring to.
I think we do have this long tradition that many of you
have referenced starting, I think, with FDR in the 1940's about
equal opportunities in government-funded--in federally-funded
employment, and that is a precedent that has been longstanding
that I am quite familiar with. So I don't understand the
reference that he made.
Mr. Conyers. And, Professor Laycock, may I be bold enough
to solicit your agreement in this discussion?
Mr. Laycock. Sure. I assume he must have been referring to
the 702 exemption in Title 7, but as all three witnesses have
said, you know, the whole point of dispute is whether that
applies when the position is government funded in whole or in
part, and that certainly is not settled. There are very few
cases, they go both ways.
We will just figure the Executive order, which has now been
amended--even when the Executive order said no discrimination
on the basis of religion there would have been a question about
the priority of the statute and of the Executive order, and
which was more specific as applied to this issue. So I think it
is unsettled. But he must have been thinking about the
exemption in Title 7.
Mr. Conyers. Let's give him the benefit of the doubt. I
will see him later on today, or not later than Monday, anyway,
and we will continue this discussion.
Now I come to one of your positions, Professor Laycock,
that I would like to put under the microscope for a little more
scrutiny.
And again, I will start with Reverend Attorney Lynn and
ask, isn't there some restriction that privately-funded
religious activities be separated from government-funded
secular services? Is there some policy that makes that a pretty
standard practice or, as Professor Laycock asserts, it doesn't
matter whether it is government funded or not?
Rev. Lynn. I think it makes all the difference in the
world. And in fact, in the Civil Rights Act, as amended in
1972, if you look at the record in this body and in the Senate
there is discussion about how organizations ought to be able to
hire and they consistently refer to private dollars.
Senator Ervin, who was cited in Professor Rogers'
testimony, said that. He said that all the time, including on
the floor. No one seriously was proposing in 1972 that with
Federal dollars comes an exemption from the otherwise
applicable civil rights principles of the country. It simply is
not there.
Mr. Conyers. Professor Rogers, can you weigh in on this
before----
Ms. Rogers. Yes.
Mr. Conyers.--I turn to----
Ms. Rogers. There is an article that I wrote, and in
preparation for writing it I looked back at the 1972 history
and found that the prime cosponsors--and this includes Sam
Ervin--when he was making the case for the broadening of the
702 exemption he would cite institutions which he emphasized
were supported solely by private money to make the case for
that broadening of the exemption that happened in 1972, and
also Senator Allen made similar types of statements citing that
as part of his case for broadening the exemption.
So if you are interested in that, there is more about that
in the article that I wrote a few years ago.
Mr. Conyers. Mr. Chairman, can I have enough time to have
Professor Laycock respond?
Mr. Nadler. Without objection.
Mr. Conyers. Professor Laycock, you have been outvoted but
that doesn't mean anything around here. What say you?
Mr. Laycock. If I understood your question you initially
asked about the requirement that the--any religious part of a
program that is privately funded be separated in time and space
from any secular part, and that is required by the Executive
order; it is required by regulations that were in place before
yesterday; and it seems to be settled about these programs. I
suggest in my written testimony it may not be constitutionally
required, but it is certainly required by regulation.
You know, the current state of the law is--on the hiring
issue, I think, is simply up in the air. Whatever people said
in the legislative history, you have got a clear exemption of
the statutory text of Title 7. The Bush people amended the 60-
year Executive order--the new Executive order from the Obama
people doesn't address it. The cases go both ways. So the
hiring issue I don't think there is any clear law in place.
Mr. Conyers. Well, we have made far more progress than I
had expected. I am happy to hear you agree that funding--
private money and government money should be generally be
separated in time and location.
Ms. Rogers. Yes, and one of the interesting things,
Chairman Conyers, is that people who disagree about the
employment issue on the council were able to come together, and
all of us agreed that as to religious activities that were
privately funded those should be cleanly and carefully
separated from a program funded by direct government aid. So
even those who have differences over the employment issue on
the council were able to come together on that point.
And that is a very important point, because as we were
discussing earlier, some earlier statutes did not make this as
clear as it should be. So I am very pleased that the council
recommendation that does, I hope, drive the point home was made
a part of the Executive order and that there is a very high
degree of consensus on those issues at the present time.
Mr. Conyers. Well, that is encouraging.
Do you feel any better about that, Professor Laycock?
Mr. Laycock. I think that is a done deal. If the executive
and Congress have come to agreement on that----
Mr. Conyers. And you.
Mr. Laycock. I am not sure we needed to go that way, but we
have gone that way.
Mr. Conyers. All right. Reluctance doesn't change--it is
like the way we vote sometimes here. You hold your nose and
vote that way. It is reluctant; it is not with enthusiasm. So
you remind me of the way some of our colleagues, including
myself, have to vote sometimes.
Ms. Rogers. Chairman Conyers, another point I would make
about that. As a religious person I am pleased that that
requirement is there because I don't want government meddling
in religion. I don't want it to tell a religious organization
what they can and can't say about religion, about matters of
faith.
So if the religious activities are privately funded and
cleanly separated from the government program, then the
religious organization is in charge of that, and as long as all
the other things are observed, then that keeps the government
out of meddling in the religious sphere. And I definitely, as a
religious person myself, do not want the government meddling in
the religious sphere.
Mr. Conyers. Thank you, Chairman Nadler.
Mr. Nadler. Thank you.
The gentleman from Georgia?
Mr. Johnson. Thank you, Mr. Chairman.
Do the panelists agree or disagree that a person--a citizen
in the United States--has a right to be free from religion?
Ms. Rogers. They have----
Mr. Johnson. Is there a right to be free from religion?
Mr. Laycock. Absolutely.
Ms. Rogers. I would put it differently. I would put it they
have a right to be free from government establishments of
religion, and so they should be free not to have the government
pressure them in any way on religious matters, but they are not
free from just encountering religion in the public square,
where religion plays such a robust role. And I think that is
appropriate.
We don't want the government playing that role; we want it
to ensure that it does not pressure people along religious
lines. That is an inappropriate role for government.
Rev. Lynn. I would just take one step further and suggest,
Congressman Johnson, that one thing that people who do not
choose to be religious also have a right to expect is that
their tax dollars will not be subsidizing the religion of other
people--any of them or all of them. I think that is a core
principle as well.
Mr. Nadler. Excuse me. We are going to have to--there is an
immediate vote in the Democratic caucus, so we are going to
have to recess the hearing, not for too long I hope.
This hearing----
Mr. Laycock. Mr. Chairman, I apologize but I have a flight
and I am going to have to leave at this recess.
Mr. Johnson [continuing]. To explain why the government
shouldn't put up crosses----
Mr. Nadler. Then let me thank you for your attendance
here----
Mr. Johnson. Well, if I might, Mr. Chairman, we were just
getting ready to get into some good----
Mr. Nadler. Well----
Mr. Johnson. But only thing I want to say is I know that
the witnesses have been here this morning, and I appreciate you
being here. I look forward to hosting you again to answer some
of the questions that I have. But I will yield and let the
hearing be brought----
Mr. Nadler. I appreciate the gentleman's actions. Let me
say that----
Mr. Laycock. Sir, I would be happy to answer in writing if
you had a question you wanted to ask and didn't get a chance.
Mr. Johnson. Thank you.
Mr. Nadler. Thank you.
We will conclude the, but before we conclude I just wanted
to claim a point of personal privilege. This may be the
Subcommittee's last meeting of this Congress. It has been an
honor to have been able to serve as the Chair. Our jurisdiction
gives us the responsibility of protecting the fundamental
rights of this country.
I want to thank the Members of this Subcommittee,
especially our distinguished Ranking Member, the gentleman from
Wisconsin, for their hard work and for the dedication they have
always brought to this task. I want to thank the Committee
staff, the Subcommittee staff. Most people never know just how
hard they work behind the scenes, how dedicated they are, how
talented each of them is.
I wanted to thank our counsels, Heather Sawyer, Keenan
Keller, Kanya Bennett on the Democratic side; Paul Taylor on
the Republic side; Matthew Morgan, our clerk, without whom the
Subcommittee could not function; and our chief of staff, David
Lachmann. Many more people have also contributed to our work
over the years--too many to mention, but we all--I and my
colleagues genuinely appreciate their service.
And the usual boilerplate language: All Members will have 5
legislative days to submit to the Chair additional question. We
ask that--witnesses to respond as promptly as they can.
Without objection, all Members will have 5 legislative days
to submit any additional materials for inclusion in the record.
Again, I thank everyone. I thank our witnesses; I thank the
staff; I thank the Members.
With that, this hearing is adjourned.
[Whereupon, at 12:54 p.m., the Subcommittee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record
Prepared Statement of the Honorable Robert C. ``Bobby'' Scott, a
Representative in Congress from the State of Virginia, and Member,
Subcommittee on the Constitution, Civil Rights, and Civil Liberties
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Prepared Statement of the Honorable Henry C. ``Hank'' Johnson, Jr., a
Representative in Congress from the State of Georgia, and Member,
Subcommittee on the Constitution, Civil Rights, and Civil Liberties
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Addendum to the Prepared Statement of the Reverend Barry W. Lynn,
Executive Director, Americans United for Separation of Church and State
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Post-Hearing Questions and Responses of Melissa Rogers, Director,
Center for Religion and Public Affairs, Wake Forest University Divinity
School
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Post-Hearing Questions and Responses of Douglas Laycock, Armistead M.
Dobie Professor of Law, Horace W. Goldsmith Research Professor of Law,
Professor of Religious Studies, University of Virginia School of Law
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Post-Hearing Questions and Responses of Reverend Barry W. Lynn,
Executive Director, Americans United for Separation of Church and State
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Letter from C. Welton Gaddy, President, Interfaith Alliance
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Letter from Jon O'Brien, President, Catholics for Choice
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Letter from the Reverend J. Brent Walker, Executive Director, and K.
Hollyn Hollman, General Counsel, the Baptist Joint Committee for
Religious Liberty
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Prepared Statement of Alan Yorker, MA, LMFT
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]