The "Charitable Choice" Bill That Was Recently Passed by the House: Why Supreme Court Precedent Renders It Unconstitutional

By VIKRAM AMAR AND ALAN BROWNSTEIN

Friday, May. 13, 2005

This is Part Two of a series on "charitable choice." - Ed.

Two weeks ago, in Part One of a series of columns, we questioned the constitutionality of a "charitable choice" bill recently passed by the House, H.R. 27. If that bill becomes law, the federal government will explicitly allow religious organizations that directly receive government subsidies in order to provide public services to discriminate on the basis of religion in hiring employees paid with government funds to staff such social service programs. In this column, Part Two, we continue the discussion of the constitutional issues presented by this proposed legislation. We focus our analysis here on one important Supreme Court decision, Corporation of Presiding Bishop of the Church of Christ of Latter Day Saints v. Amos - a ruling on which the Bill's supporters often, but misguidedly, rely. We begin with a quick summary of the affirmative case against H.R. 27 we staked out in Part One.

The Key Precedent That Calls H.R. 27 Into Question

As we explained in our last column, we think the controlling judicial precedent in this area is Justice O'Connor's concurring opinion in Mitchell v. Helms, a case where a divided Court upheld federal funding used by states to lend educational materials and equipment to public and private schools, including some private parochial schools

In providing the key vote to uphold such funding, Justice O'Connor made clear that other funding schemes by the federal government would contravene the Establishment Clause of the First Amendment.

In particular, according to Justice O'Connor, when government allows its direct aid to be used to finance a religious institution's religious mission -- as distinguished from its secular functions - two related but distinct Establishment Clause violations occur: government impermissibly "advances" an organization's religious mission in fact, and government improperly "endorses" religion. Accordingly, Justice O'Connor made clear, government funds may not be used to persuade or teach people to adopt religious beliefs.

The pending charitable choice legislation squarely raises these same constitutional concerns. Basing a job applicant's eligibility for government subsidized employment on religious beliefs constitutes prohibited religious indoctrination for the same reason that restricting access to government subsidized computers or educational materials to only those students who regularly profess allegiance to a particular faith would be indoctrinating: It advances the religious organization's religious mission by rewarding the adoption of approved religious beliefs or penalizing any expressed commitment to other faiths, or no faith. And it sends a message of approval because of this advancement.

Establishment Clause doctrine would make little sense if the Court were to hold that government funds may not be used to persuade or teach people to adopt religious beliefs (the subject of Justice O'Connor's concerns in Mitchell), but funds may be used to induce people to assert a commitment to religious beliefs on penalty of losing employment opportunities or other material benefits.

Notably, the religious discrimination permitted by laws like H.R. 27 does not end at the hiring decision. Indeed, it may involve ongoing oversight designed to maintain and reinforce the religious beliefs and practices of employees. The government funded faith-based organization may insist on repeated expressions of faith by employees and regular participation in religious practices. An employee who begins to consider alternative faiths, or lapses in religious observance, could be terminated.

In short, there is nothing static about religious discrimination in employment. It is a continuing process of control by employers of the religious beliefs and practices of their employees. For the government to directly provide the money by which employers exert this control would be flatly inconsistent with Mitchell.

The Amos Case -- Backdrop and Holding

That recap brings us to an argument defenders of bills like H.R. 27 often invoke - that the Supreme Court in Amos has already upheld religious discrimination in hiring staff with government funds to administer publicly subsidized programs. We believe this assertion is simply false.

In Amos, the Court rejected a claim that Congress' decision to exempt religious organizations from Title VII's prohibition on discrimination in employment based on religion runs afoul of the Establishment Clause.

But the key to understanding Amos - and its limits - is the fact it involved religious discrimination in hiring by a privately funded religious organization using its own resources to pay its employees. Amos does not directly apply to, or support, religious discrimination in hiring employees paid from government grants in publicly funded programs - so it provides no constitutional cover for H.R. 27 and similar laws.

Indeed, to the extent that Amos is relevant to the H.R. 27 debate, the backdrop against which Amos was decided, and the reasoning and analysis used by the Court in Amos itself, all strongly suggest that allowing religious providers to discriminate in hiring in publicly funded programs is a violation of the Establishment Clause.

Let's first examine the doctrinal backdrop of the Amos decision. At the time Amos was decided, in 1987, controlling Supreme Court authority strongly suggested that it is unconstitutional for the government to provide direct aid to religious organizations that practiced religious discrimination in hiring - even if the government subsidies were not used for religious purposes or to pay personnel.

Cases such as Grand Rapids v. Ball and Aguilar v. Felton, decided in the mid-1980s, were generally considered to be the "high water" mark for the "no direct aid whatsoever" position in Establishment Clause doctrine. In Ball, for example, the Court held that it was unconstitutional for public school teachers hired and paid by the state on a non-discriminatory basis to provide secular remedial services to children attending pervasively sectarian schools on religious school grounds. (Ball and Aguilar would be overruled ten years after Amos was decided, but are helpful in making sense of Amos when and as it was decided.)

Under the framework adopted in Ball and Aguilar, all direct government aid - all direct transfers of money, personnel and other resources -- to pervasively sectarian religious organizations (a trademark characteristic of which is that they discriminate on the basis of religion in hiring employees) is unconstitutional, period.

Given these holdings, it is completely implausible to argue that the Court in Amos meant, without ever so saying, to permit religious discrimination by religious providers in hiring employees for government funded jobs - when direct aid to organizations engaging in such discrimination was considered unconstitutional. If it unconstitutionally advances religion when government uses public employees of any faith or no faith to provide secular services at a religious facility, as in Ball, how could anyone suggest that the Court would uphold the government giving direct grants to religious organizations and allowing them to hire employees of only their own faith to provide similar public services? Such a contention is even more indefensible when one remembers that Justice Brennan, the author of the majority opinions in Ball and Aguilar, concurred in the Court's result in Amos, and made clear in his separate writing there that his only point of disagreement with the majority opinion was over whether the Title VII exemption applied only to nonprofit organizations, a point not relevant here.

What the Court and Briefs in Amos Actually Said

Those who would invoke Amos to support H.R. 27 are also directly refuted by the fact that the briefs supporting the result the Court reached, and the Court's opinion itself, explicitly point out that the issue in Amos did not involve government financial support of religion. The brief for the Mormon Church (the employer in the case), for example, criticized the lower court for failing to recognize that a relatively relaxed Establishment Clause analysis applies "when government has expressly chosen not to provide religion with financial aid or other direct assistance, but instead to accommodate religious freedom and autonomy by exempting religious institutions from certain obligations of law." Similarly, the brief for the United States stressed that the statute at issue "does not result in government financial support of religious activities."

The Amos majority echoed these briefs, explaining that: "A law is not unconstitutional simply because it allows churches to advance religion, which is their very purpose." To violate the Establishment Clause, the government must assist religious organizations to advance religion through public "sponsorship, financial support and active involvement ... in religious activities." Without such financial support or sponsorship, allowing a church to go about its business promoting religion in most cases is perfectly permissible.

Understanding Amos in this way is just plain constitutional common sense. It must be permissible for a church to use its own resources to advance its own religion. That is why private citizens contribute funds to religious organizations of their faith in the first place. As the Mormon Church argued in its brief, "salaries paid to Church employees are obtained primarily from contributions from members of the Church donated to support Church activities." In all but the most unusual cases, it would be pretty hard to find anything unconstitutional about the Church using those funds to promote the faith of the donors.

But see how odd and hollow the Amos Court's language (quoted two paragraphs above) would read if public funding were involved. Now the Court would be saying: "A law is not unconstitutional simply because it allows churches to use government grants to advance religion, which is their very purpose." We submit that the line has a very different constitutional ring to it, and one not remotely suggested by the actual words of Amos itself.

How The Teachings of Amos Actually Undercut Rather than Support H.R. 27

Far from supporting H.R. 27, then, the teachings of Amos, properly understood in the larger context, affirmatively undercut it. We start with two basic propositions - the first of which pre-dates Amos and the second of which Amos itself highlights. First, irrespective of other questions regarding direct government aid to religion, at the very least government does not and cannot constitutionally provide direct aid to religious organizations for the purpose of assisting or advancing their religious missions: Government subsidies must be directed to the accomplishment of secular purposes by secular means.

And, second, as the Amos Court makes clear, religious organizations discriminate on the basis of religion in hiring employees in order to better "define and carry out their religious missions." It is because the Court believed that religious discrimination in hiring staff to engage in religious activities was so intrinsic to a faith community's religious mission that it upheld the Title VII amendments permitting such discrimination, notwithstanding that doing so (as Justice Brennan's concurrence pointed out) "has the effect of burdening the religious liberty of prospective and current employees."

On this second point, it is true that the Title VII exemptions at issue in Amos go beyond the performance of religious functions and allow religious organizations to discriminate on the basis of religion in hiring employees to engage in any activities, whether the activities are religious or not. But the more expansive scope of this exemption was upheld because a narrower provision limited solely to employees performing religious activities would in fact interfere with the ability of religious organizations to pursue their religious mission. Distinguishing between religious and non-religious activities can be intrusive and varies by faith, and courts and juries might have significant difficulty accurately determining in which category a particular job function belongs.

The uncertainly created by a narrower law would have a chilling effect and discourage religious organizations from hiring only members of their own faith to perform religious activities - out of fear of being held liable if civil authorities failed to correctly recognize the activity at issue as religious.

Concern over this chilling effect led the Court to accept the broader Title VII exemption. Thus, the Court's opinion makes it clear that the more expansive exemption was constitutional only because it was necessary to protect the ability of religious organizations to define and carry out there religious mission.

With these two principles - both of which find expression in Amos - in mind, it is easy to see that a federal law permitting religious organizations to discriminate on the basis of religion with government funds, rather than private resources, is unconstitutional. Such a law serves no secular purpose, and results in constitutionally impermissible effects.

As Amos makes clear, religious organizations discriminate on the basis of religion in hiring staff in order to better define and advance their religious mission. That is the primary, if not the exclusive, purpose and effect of such discriminatory policies. It is the reason why the Court upheld amendments to Title VII allowing religious organizations to engage in such discrimination with their own resources.

But that is exactly what government grants of direct aid cannot be used to do without violating the Establishment Clause. Government funds cannot have the purpose or primary effect of advancing religion. If religious organizations discriminate on the basis of religion in hiring staff whose positions are government-funded, in order to better define and advance their religion mission, then the purpose (by definition), as well as the effect, is the advancement of religion.

Let us be clear here that when we discuss the definition and advancement of a religious mission, we are not talking about the actual social service programs themselves - such as job training or the provision of health care. These activities are secular in content and are funded by government for secular reasons, even though the participation of religious organizations in such programs might be religiously motivated.

The Establishment Clause does not prohibit government from subsidizing religious organizations engaged in doing good works in the ethical, moral, or charitable sense, notwithstanding the fact that from the religious organization's perspective, the purpose and nature of the work is religious in nature. Secular and religious understandings of the good often overlap.

Pursuant to this understanding, it is not unconstitutional for the government to subsidize a soup kitchen operated by a religious organization - with the government acting to further the secular public good of feeding the hungry, and the religious organization engaged in the same activity as a matter of faith and religious responsibility.

For similar reasons, it does not violate the Establishment Clause for government to adopt laws, such as the prohibition against murder, that serve legitimate secular purposes - even though such normative proscriptions coincide with religious ethical precepts. And this is the reason why individuals who oppose such laws must obey them or face criminal sanction, even if they do not subscribe to the religious ethical precepts that correspond to secular legislation.

Discrimination on the basis of religion in deciding who can participate in a religious organization's activities involves a much more intrinsically religious set of beliefs and activities (relating to one's understanding of G-d, for example) that have no true secular counterparts.

When a religious organization discriminates on the basis of religion in hiring an employee to teach word-processing in a job-training center, the organization is not focusing on qualities valued by both secular and religious belief systems, such as honesty or compassion (over which no religion has a monopoly). At issue instead is a person's religious identity and her commitment to intrinsically religious beliefs - the kind of identity and beliefs which distinguish people of different faiths from each other and from those who do not adhere to any religion.

This is the aspect of religion we are addressing when we say that religious organizations cannot use government funds to advance their religious missions. It is also the aspect of religion that government cannot further through the exercise of its regulatory power.

The state can command, "Do not kill other people." But it cannot command, "You must pray and worship, or congregate with people of certain beliefs." Many religious people may believe that both commands are required by their faiths. But only the former can be imposed by the state on others. Similarly, government can subsidize the act of, and commitment to, helping the needy. But it cannot subsidize the belief that G-d requires us to help the needy in specific ways.

Thus, religious organizations can discriminate against prospective employees who do not demonstrate sufficient compassion for and commitment to the beneficiaries of public services. But they cannot require employees whose salaries are paid by government funds to base their compassion and commitment on specific theological beliefs.

In Part Three, we will consider additional counter-arguments supporters of H.R. 27 may assert in response to our analysis, and further discuss the larger constitutional picture in which the debate over H.R. 27 must take place.


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. He is a co-author, with William Cohen and Jonathan Varat, of Constitutional Law: Cases and Materials (12th ed. 2005) (Foundation Press), and a co-author of several volumes of the Wright & Miller Federal Practice and Procedure Treatise published by West. Alan Brownstein is a Professor of Law at UC-Davis School of Law.

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