The "Charitable Choice" Bill that was Recently Passed by the House:
The Normative Question of What the Constitution Ought to Require When Such Laws Are Reviewed

By VIKRAM AMAR AND ALAN BROWNSTEIN

Friday, Jun. 10, 2005

Eight weeks ago, we began this series of four columns on the constitutionality of so-called "charitable choice" legislation. We focused on one recent example of such a law, H.R. 27 -- the Job Training Improvement bill that was passed recently by the House, but has not yet been acted on by the Senate.

In these columns, we have argued that under current Supreme Court authority, it is unconstitutional for a bill to do what H.R. 27 does: that is, to allow religious organizations providing state-subsidized social services to discriminate on the basis of religion in hiring employees whose salaries are paid out of direct grants of government funds. In particular, we have argued that these provisions violate the Establishment Clause of the First Amendment.

In our first column, we described the constitutional doctrine on which our analysis would be based: Government may not permit religious organizations it subsidizes to use state funds to advance their religious missions. Accordingly, direct grants of government funds cannot be used for distinctly religious activities -- such as religious instruction, worship, and proselytizing -- that have no real secular counterpart or purpose.

For similar reasons, we contended, religious organizations may not use government funds to define and carry out their religious missions by discriminating on the basis of religion in hiring employees to staff state-subsidized programs. In our next two columns, we further explained and defended our line of argument against various counterarguments.

These three earlier columns recognized current Establishment Clause doctrine, summarized above, as the accepted principles controlling the legal debate. But this present column is different. Here, we no longer focus on what current case law requires. Instead, we address the more abstract normative question of what constitutional law should require on this issue, given that we live in a pluralistic democracy that is committed to religious liberty and equality for people of all faiths and those of no religion alike.

In other words, we ask, in this column: Is current doctrine correct to prohibit government from allowing state funds to be used by religious organizations to advance their denominational missions?

We think it is. We strongly support this substantive Establishment Clause principle on normative grounds. Further, we suggest that the specific application of this principle to employment discrimination, in the context of government funding, is particularly important and deserving of respect.

Why Should It be Unconstitutional for Government to Allow State Funds to be Used for Religious Activities and Purposes?

We begin by describing our underlying normative vision: The goal of the Constitution's religion clauses (the Establishment and Free Exercise Clauses of the First Amendment) is to promote a society in which people of all faiths, and those of no religion at all, can participate freely in the public life of their communities on the basis of equal worth and mutual respect.

Achieving that goal requires a commitment to both religious liberty and equality: to the guarantee that religious individuals and their associations can adhere to their beliefs and practice their faith without burden or penalty - and that religion does not determine rank or status within the political community.

We recognize, of course, that this vision is an ideal - one that cannot be achieved in any absolute sense. Religious freedom and equality, as important as they are, are not the only interests that society values. There will sometimes be conflicts between these interests, and other societal interests - conflicts that will have to be resolved through a complex process of accommodation, compromise, and, in some cases, subordination of one value to another. But the impossibility of achieving complete religious liberty and equality for everyone should not undermine our collective aspiration to do the best that we can in this area.

This ideal, however, is particularly difficult to achieve in a pluralistic society such as ours. American communities are remarkably heterogeneous on matters of faith. Many of the various religious groups that comprise our society hold starkly different beliefs and engage in very distinct practices. It is easy to recite our national motto, E pluribus unum, "Out of many, [comes] one," but how are we going to get this noble idea to work, on the ground? How, in other words, do we provide liberty and equality for all in such a religiously diverse society, while maintaining our integrity as a polity and community?

Obviously, we do not -- and should not -- ask some individuals to give up their different religious perspectives just to achieve greater homogeneity. Nor should we intrude into the autonomy of religious institutions that have been developed by distinct religious communities in the service of their faith. But we can -- and must -- insist that when we act as a political community, through our government, we have to be willing to work together, notwithstanding our religious differences.

We think this basic distinction - the distinction between the private and public sectors - is the central principle that enables us to maximize religious liberty and equality.

Not all of society is subject to the same rules of conduct; the public sector operates under special, constitutionally-mandated standards. In the public sector -- and by public sector, we mean the set of programs that serve the government's goals, are subject to government regulation, and use government resources -- religious discrimination is unacceptable and prohibited (There are very few exceptions to this principle; one occurs when public space is temporarily ceded to private individuals who use it for expressive purposes.)

Certainly, when government directly subsidizes social services, its resources must be made available to everyone, regardless of religious conviction. That goes not just for the beneficiaries of state-funded social service programs, but also for the employees who staff them.

In contrast, much of private sector life is different. Here, individuals and families have maximum liberty to follow the dictates of their faith and to develop, with their own resources, an infrastructure obedient to their beliefs. Whether such institutions or programs operate exclusively in the service of one faith, or are opened more generally to the wider community, is a matter for different faiths to determine - each on the basis of its own religious commitments.

The Problems with a Religiously Fragmented Public Sector

This distinction between government and the private sector can be justified on several grounds. We contend, initially, that the public sector, of all places, must be religiously integrated because of the messages sent by government action.

Because government literally sets the standard, the public sector cannot be fragmented along religious lines. Government serves as the paradigm of our commitment to equality and unity. We cannot purport to promote the ideal of people of different faiths working together, on the basis of equal worth and mutual respect, when the state allows discrimination on the basis of religion in government-funded programs.

Indeed, as an historical matter, government service has often been the pathway to inclusion for minorities. Surely, that tradition deserves continued recognition.

Another basis for this distinction between the public and private sector realms involves the relationship between government and private organizations and their respective constituencies. Government represents everyone in the community, and it draws its support from everyone. But private religious organizations are different. They represent distinct faith communities, and receive financial support from those individuals who endorse the organizations' religious tenets.

Thus, outsiders to a given religious community have little basis for objecting on fairness grounds to their exclusion from the programs and benefits provided by its institutions or to the religious precepts such institutions promote. It is not their community, after all, and they did not contribute to its support.

Something very different happens, however, when government funds are used for religious activities and purposes, such as worship, proselytizing, and religious instruction. Here, taxes paid by individuals of one faith (or no faith at all) are used to promote religious beliefs that challenge the legitimacy of those very taxpayers' own convictions. It matters very much when a person's resources are taken by government to support religious tenets that contradict his own beliefs.

It is a particularly egregious affront to one's status in the community when religious organizations discriminate on the basis of religion in hiring staff for publicly-funded programs. Here, individuals are denied employment, because of their religion, in government programs their own tax dollars were used to create.

It is one thing for a person to be denied employment in programs created by and serving a religious community to which he does not belong. But it is a much more serious and harmful matter when a person is denied employment because of his faith in programs funded by his own government that serve the political community to which he does belong, and to which he owes his allegiance as a citizen.

Special Concerns for Religious "Minorities"

Most important, the use of government funds for distinct religious purposes fragments the public sector along religious lines. To the extent that such religious fragmentation occurs, it has the effect of excluding and isolating many religious minorities from the public sector life of their communities.

True, given the diversity of denominations in America, in some sense every faith is a minority religion here. But some religious faiths are obviously far smaller than others. There are far fewer Hindus or Jews in America than Catholics, for example. And, for all their differences, Protestant faiths together comprise a majority in many communities, while Buddhists or Atheists rarely, if ever, do.

It is these smaller groups that will bear the brunt of religious organizations' using government funds for religious purposes. A religious provider that incorporates worship, religious instruction, and proselytizing of the provider's faith in state-subsidized social services may claim its programs are open to all eligible beneficiaries. But in practice, its services are inaccessible to persons of different faiths who are unwilling to subordinate their religious beliefs in order to receive government-subsidized benefits.

Similarly, if the organization discriminates on the basis of religion in hiring staff for these government-funded programs, potential employees of other faiths are excluded from participating in the provision of these services.

Some smaller faiths may not see such exclusionary practices as a burden. They may prefer a more separate existence, and will value the ability to maintain their own religiously exclusive institutions. But many religious minorities do not consider the "liberty" to be excluded from important public sector activities that comprise a significant part of the public life of their community to be true religious liberty - and such privately orchestrated religious separation in public programs seems fundamentally inconsistent with contemporary notions of meaningful equality. For many members of smaller faiths, true religious liberty and some semblance of equality require a non-discriminatory public sector that is fully open and available to people of their faith.

Finally, in this regard, we note that Americans of different faiths have to be able to live and work together outside of the public sector. We may not worship in the same church, synagogue, or mosque, but we will share neighborhoods and worksites in commerce and business. For most of us, such residential and commercial religious integration is a source of pride - and a tribute to American ideals.

But living and working together with people who hold very different religious beliefs, or no religious beliefs, isn't always easy. We all harbor stereotypes and misconceptions about religions other than our own -- misconceptions that can create unnecessary barriers and conflicts in our communities. Living and working together takes practice. Positive interactions dispel misunderstandings and foster empathy and mutual respect.

There are many ways to structure such interactions, but one possibility seems particularly obvious and useful: There are few better ways to develop good will and mutual respect than working with other people in public service programs - providing assistance to people in need.

Public sector programs can bring us together, in all of our diversity, united in working toward the common good and the well-being of those who need our assistance. Perhaps this is not a constitutional argument, but it is a good policy reason to endorse religious integration in the public sector, nonetheless.

Why Constitutional Mandates Restricting the Use of Government Funds for Religious Purposes Do Not Devalue Religion

In concluding this series of columns, we want to emphasize that we recognize the important and valuable work done by religious organizations for their own communities and for society at large. Nothing we have written should be taken to reflect a lack of respect on our part for religious beliefs or institutions. Nor do we see anything improper or problematic about faith-based organizations' making religious commitments the basis, and the objective, of the activities they support with their own resources. We argue only that they cannot use government funds dedicated to the promotion of government goals in pursuing their religious mission.

Similarly, while we appreciate the role religious organizations play as mediating institutions that serve as buffers between the state and the individual, we doubt that dependence on government support is consistent with that function.

We do not think that a constitutional framework that requires self-reliance by religious institutions in performing religious functions devalues religion. Instead, we think it confirms the historic conviction that such self-reliance contributes to the vitality and independence of religion. The value of voluntarism - of the collective commitments, efforts, and sacrifices of the members of a religious community working together in the service of G-d, or whatever their understanding of the transcendent may be -cannot be overstated.

Furthermore, we believe that as a constitutional and policy matter, true respect for religious organizations in all of their diverse roles is not expressed through government subsidies of their religious missions - with all the risks of government control and dependencies on state support that such funding arrangements create. Rather, it is manifested by a rigorously enforced Free Exercise Clause - and by legislative accommodations that protect religious institutions from state interference, and exempt them from burdensome regulations that prevent them from using their own resources according to the dictates of their faith.

Proponents of charitable choice laws often argue that religious organizations are just like their secular counterparts and, accordingly, should have comparable discretion to use government funds for ideological purposes. But in fact, in asserting this argument, they actually undermine the case for the very exemptions and accommodations on which religious liberty actually depends. The more vigorously it is insisted that religious and secular organizations are similar, and therefore must receive similar treatment with regard to their access to, and use of, government funds, the more difficult it is to explain why religious individuals and organizations deserve special recognition and exemptions from general laws that their secular counterparts must obey.

For us, religious liberty in the public sector is furthered by accommodating religious employees and removing barriers that prevent them from working for the government or in government-funded programs - not by allowing people to be fired because of their faith.

The principles we endorse do not preclude religious organizations from assisting government in performing public functions. Nor do we suggest that they must sacrifice their religious identity in doing so. Religious organizations can work side by side with government, the former acting out of religious motivations and the latter serving overlapping secular goals.

But government funds may not be used for distinctly religious activities and purposes - and religious organizations that choose to accept direct grants must recognize that the availability of government subsidies is grounded on that understanding.

Religious organizations can work with government to further public sector goals if they choose to do so. But government cannot work with religious organizations to further such organizations' distinctly religious missions.

Instead, government funds must be reserved for non-religious activities in programs staffed by employees selected on a non-discriminatory basis. That should be, and is, what the Constitution commands.


Vikram David Amar is a professor of law at the University of California, Hastings College of the Law in San Francisco. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. Before teaching, Professor Amar practiced at the firm of Gibson, Dunn & Crutcher. Alan Brownstein is a Professor of Law at UC-Davis School of Law.

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