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The "Charitable Choice" Bill that was Recently Passed by the House, and the Issues It Raises


Friday, Apr. 29, 2005

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

On March 2, the House of Representatives passed the Job Training Improvement Act, H.R. 27. If enacted into law, this bill will allow religious organizations that receive federal funding to provide social services to the needy to discriminate on the basis of religion in hiring employees to staff these federally-funded programs. The Senate has not yet acted on the proposal.

More specifically, H.R. 27 - like previous job training bills -- includes a civil rights provision prohibiting grantees who receive federal funds from discriminating on the basis or race, gender, religion and other listed characteristics. But the bill then adds an exception to this provision, permitting religious providers to discriminate on the basis of religion in hiring.

In doing so, H. R. 27 builds on a relatively new policy trend permitting religious discrimination in hiring in government-funded programs. The policy was initially adopted in the "charitable choice" provisions of the 1996 Welfare Reform Act. And it was extended pursuant to Executive Orders as part of the President's so-called "Faith-Based Initiative."

Putting aside policy pros or cons, in this series of columns we will focus on the main constitutional objections to the proposed legislation. To put things simply, we believe the bill amounts to a clear violation of the Establishment Clause of the First Amendment, as that Clause has been construed by the Supreme Court. It is unconstitutional for the government to allow religious providers receiving direct grants to discriminate on the basis of religion in hiring, when the employees who are being hired are paid out of public funds to provide public services and benefits in government-funded programs.

The Controlling Judicial Opinion - the Concurrence in Mitchell v. Helms

The controlling judicial authority laying out the constitutional constraints on government aid to religious institutions and activities is Justice O'Connor's concurring opinion in Mitchell v. Helms. In Mitchell, a fractured Court five years ago upheld a federal program that distributed funds to state and local governmental entities, which in turn used the funds to loan educational materials and equipment (such as books and computers) to public and private schools, including some private parochial schools.

In that case, four Justices joined a plurality opinion. That opinion, taken together with Justice O'Connor's concurring opinion (which was joined by Justice Breyer), meant that a majority of the Court was in favor of upholding the program. Because the support of the concurring justices was necessary to form a majority, the position they expressed in their opinion is binding and limits the Court's holding.

That concurrence made clear that, notwithstanding the neutrality of a particular funding program, grants of direct aid simply cannot be used for religious purposes. Indeed, Justice O'Connor says this so many different times, in so many different ways, that her position here cannot seriously be debated; she states that government funds may not be diverted to "religious indoctrination" or "to the advancement of religion," that government resources should not be used to assist "a sectarian school's religious mission" or to "advance the religious missions of the recipient schools," and that government support must not be employed by recipients "to finance religious activities" or "to support their religious objectives."

According to Justice O'Connor, allowing direct aid to be used to finance a religious institution's religious mission -- as distinguished from its secular functions - violates two related but distinct Establishment Clause prohibitions. The first is that government may not, in fact, impermissibly "advance" an organization's religious mission.

The second is that government may not improperly "endorse" religion. As Justice O'Connor pointed out: "[I]f the religious school uses the aid to inculcate religion in its students, it is reasonable to say that the government has communicated a message of endorsement."

In this series of columns, we will not, at least initially, address what constitutional doctrine in this area should be. Instead, we will accept as our starting point that - whether it was right or wrong -- Justice O'Connor's analysis in Mitchell provides the framework for evaluating Establishment Clause challenges in direct aid cases.

Why H.R. 27 Clearly Violates the Establishment Clause Principles set out in Mitchell

With the Mitchell holding in mind, recall what H.R. 27 does: It gives government subsidies to organizations that will use those funds to hire employees, and it allows the organizations to make their hiring decisions based on job applicants' expressing particular religious beliefs or engaging in required religious practices. Described this way - and this is an accurate summary - the bill clearly violates the principles of non-advancement and non-endorsement of religion that Justice O'Connor laid out in Mitchell.

After all, the purpose of religious indoctrination is to inculcate beliefs. Surely one obvious way for a religious organization to advance that goal is to reward the adoption of approved religious beliefs by providing a job, or to penalize any expressed commitment to other faiths -- or no faith -- by withholding one. Indeed, making employment eligibility dependent on an applicant's religious practices and beliefs may be a more effective (and more coercive) way for an institution to advance its religious mission than simply teaching, or proselytizing to, people about the organization's religion.

If government direct aid grants cannot be used to teach religion, as Justice O'Connor's writing in Mitchell emphatically proclaims, then it follows logically that when government allows its money to be used in more coercive ways that are more overtly burdensome to religious liberty, the Constitution is violated.

The "No Harm, No Foul" Response to the Argument that H.R. 27 Is Unconstitutional

Given the strength of these arguments, how do proponents of bills like H.R. 27 respond?

Perhaps their weakest argument is that such discrimination really doesn't hurt anyone -- a kind of "no harm, no foul" analysis. Because religion is not an immutable characteristic (in the way that, say, race or sex is) and, instead, involves the choice of the believer, the argument runs, discrimination against individuals on the basis of religion isn't very problematic - certainly, it is not of constitutional significance here.

In the words of one proponent of allowing discrimination in government-funded faith-based programs: "If you want to work in a Baptist soup kitchen, all you have to do is become a Baptist."

As a matter of constitutional doctrine, this contention is specious. Discrimination directed at the way a person exercises a fundamental right, such as the free exercise of religion, cannot be justified by the reality that individuals can influenced by benefits or burdens to alter their behavior. The reason we have constitutional rights it to protect their exercise against just this kind of coercion. Moreover, in addition to deserving protection as a liberty right, religion constitutes a core aspect of a person's identity meriting protection under equality principles as well. Thus, the mutability of faith may actually accentuate the need for constitutional protection against religious discrimination. In no way does it justify reducing the scope of that protection.


proponents of laws like H.R. 27 do not really confront the impact of the discrimination they support. They just keep quiet about it, as if their silence somehow makes the consequences of discrimination less real. But this is a very large problem to try to hide under the rug.

Sometimes they suggest that discrimination is not an issue because government funds will be allocated fairly across religions without bias. Even if that is so, however -- and at least one of us is dubious about this contention -- it does not mitigate our concerns or undermine our argument.

If funds are truly allocated according to neutral criteria, at best that would mean that the distribution of awards will reflect the religious demographics of American communities and that minority faiths would not be shut out of the process entirely. But consider what that means for a religion that comprises perhaps one or two percent of the American population. Permitting discrimination in hiring on the basis of religion in government-funded programs creates the possibility that members of that minority faith could be ineligible for employment in 98 to 99 percent of government-subsidized programs operated by faith-based providers - solely because they hold the "wrong" religious beliefs.

Nor can the extent of these faith-based grants be dismissed as trivial. The total scope of these programs may involve not just millions, but billions of dollars in public subsidies. It is no wonder that proponents of laws like H.R. 27 do not want to explain why they believe restricting the eligibility of religious minorities for jobs in possibly billions of dollars of government programs does not burden religious freedom and lacks constitutional significance.

The "Purpose of the Law" Response to the Argument that H.R. 27 Is Unconstitutional

A second unpersuasive argument in defense of religious discrimination asserts that the problem is unimportant as a constitutional matter because the purpose of the federal funding schemes at issue "is not to create jobs." That statement may be true, but it is also entirely irrelevant.

Most of what government (or the private sector, for that matter) does is not for the purpose of creating jobs. Governments provides services (and sometimes physical goods), as do private businesses. The creation of jobs is virtually always an incident to performing those various functions that require the hiring of employees. (We might have to go as far back as the Depression and the New Deal to find government programs that serve no purpose other than to provide jobs.)

But why would anyone think that this simple fact -- that government and businesses do not engage in activities for the express purpose of providing jobs -- somehow justifies discrimination in hiring employees, or reduces the impact and consequences of such discrimination? Would racial discrimination in government or government-sponsored hiring similarly be of no consequence, as long as the government-subsidized program at issue was not created for the explicit purposes of creating jobs?

Indeed, if this kind of an argument were taken to its logical conclusion, proponents of laws like H.R. 27 would find themselves hoisted on their own petard with regard to other arguments they espouse. Typically, those who favor such laws are equally adamant in protesting what they claim has been the government's historical exclusion of religious providers in the administration of these same social service programs. But on their own logic, since the goal of a social service funding scheme is not to subsidize or facilitate religious organizations -- but rather to provide services to a class of needy beneficiaries -- that discrimination too should be of little constitutional significance and acceptable.

Another Response to the Argument that H.R. 27 Is Unconstitutional: Religious Discrimination Does Not Involve "State Action" -- So It Can Not Violate the Constitution

Proponents of laws like H.R. 27 also make another argument as well. It is more serious than the ones discussed above, but it is still without merit.

An Establishment Clause violation, like any other constitutional violation, requires "state action" -- that is, action by the government. For example, if a teenager coerces a friend to pray with him in his room, that might be bad (and might even be a tort), but the Constitution would not have been violated. But if a public school teacher coerces the students he teaches to join him in prayer in the classroom, a clear constitutional violation occurs.

Defenders of laws like H.R. 27 contend the religious providers who might discriminate on the basis of religion in hiring staff with public funds are not state actors. Accordingly, their discriminatory practices are not subject to, and cannot violate, the Establishment Clause.

This "state action" argument really raises a number of separate contentions and sub-issues that require independent discussion.

First, we can quickly dispense with any suggestion that the constitutional challenge to bills like H.R. 27 depends on the assumption that the religious providers practicing employment are state actors. Of course, they are not. Everyone agrees that the religious organizations themselves are not the government.

But it is not their decisions that constitute the "state action" here. The "state action" on which our constitutional analysis depends is the government's allowing religious organizations it subsidizes to discriminate on the basis of religion in hiring employees to staff government-funded programs.

This in some respects brings us to the question that lies at the heart of the state action problem: When, if ever, can a private organization's conduct be attributed to the government for the purpose of determining whether there has been a violation of constitutional guarantees? Defenders of religious discrimination argue that the Constitution is not implicated when government simply allows discrimination with federal funds to occur. The faith-based provider makes the decision to discriminate in hiring on its own. Such discrimination is neither encouraged nor compelled by the government. Therefore, the suggestion is, the effect of that discriminatory decision is not the government's responsibility, and the state actor here - the government - is free from the taint of any constitutional wrongdoing.

We acknowledge that there are some constitutional guarantees as to which the government may permit private actors to interfere with an individual's rights without being held responsible for doing so. "Procedural due process" is the most obvious example.

In one illustrative case, Flagg Bros., Inc. v. Brooks, the Court held that the state did not violate constitutional due process when it authorized and allowed - but did not compel -- a private storage company to sell off stored goods on the grounds that the owner had not paid her storage fees, even though the company did so without giving the owner adequate notice or an opportunity to be heard. Any deficiencies with the process afforded the debtor resulted from the warehouseman's independent decisions for which the state was not held responsible.

But not all constitutional guarantees operate this way. The Takings Clause of the Fifth Amendment, for example, does not. In

Loretto v. Teleprompter Manhattan CATV, the Court held that if the state authorized cable companies to place their cable boxes on apartment house owners' private property, a "taking" occurred, requiring the payment of just compensation. A case like Loretto would be rendered meaningless if the state could circumvent the Takings Clause by arguing it did not compel the cable company to occupy the owner's property, but simply allowed the cable company to do so.

The crucial inquiry, then, is: How do these state action principles apply to public funding cases under the Establishment Clause? In answering that question, we see that we have come full circle. Any contention that there is no Establishment Clause violation when government allows, but does not require, religious organizations to use state funds for religious purposes directly contradicts Justice O'Connor's analysis in Mitchell on which our constitutional challenge is based.

Recall that Justice O'Connor wrote that, under the Establishment Clause, government may not allow public funds to be diverted by private religious organizations to religious indoctrination. It was abundantly clear in her discussion that it was the private religious organizations that would make the ultimate decision to use public subsidies for religious purposes. Indeed, the entire thrust of Justice O'Connor's disagreement with the plurality in Mitchell is her contention that government violates the Establishment Clause when it allows religious grantees to use public funds to promote religious beliefs and advance their religious missions.

We submit that for state action purposes there is no difference between holding the government responsible for allowing a religious provider to use government funds for religious teaching and worship activities - the focus of the discussion in Mitchell - and holding the government responsible for allowing religious providers to discriminate on the basis of religion in hiring employees to staff government funded programs.

In our next column, we will continue our Establishment Clause analysis of H.R. 27. We will focus particularly on the argument that religious discrimination in hiring staff to administer government-funded programs has already been upheld as constitutional by the Supreme Court, in Corporation of Presiding Bishop v. Amos. As we will explain, we strongly disagree with this reading of the Amos case.

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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