New version of H.R. 7 contains dangerous new
loophole to attack the social safety net
The new H.R. 7, being debated today, contains a provision that allows a
Cabinet Secretary to unilaterally convert a grant or direct funding
program to a voucherized program, even if the underlying authorization
does not permit voucherized assistance. This unprecedented move would
allow longstanding grant programs to be converted to voucherized
assistance without Congressional approval. This radical step was taken
to allow religious organizations that want to proselytize beneficiaries
in a program to do so. The new H.R. 7 accomplishes this by allowing
religious discrimination against a beneficiary during the program, when
the government funding comes in the form of a voucher, certificate or
other forms of indirect aid. The original version of H.R. 7 did not
allow this form of heinous discrimination. Under the new H.R. 7, a
person seeking help through a voucher could be told, once they have been
admitted to the program, that they must convert to another religion in
order to receive the government-funded services.
Employment
discrimination still allowed
Although the backers of "Charitable Choice" now assert that
programs receiving government dollars must be nonreligious in nature,
the bill explicitly permits organizations to discriminate in employment
based on religion and religious tenets for staff positions in
government-funded programs. At the Judiciary markup, when backers of
"Charitable Choice" were asked to explain why it is necessary
to turn people away based on their religion for government-funded staff
positions to deliver non-religious services, they had no meaningful
explanation.
In addition, although the Chairman of the Judiciary Committee claims
that the new version of HR 7 takes out explicit language allowing for
religious practices discrimination, the new version actually leaves
veiled language intact that would allow for such employment
discrimination based on religious practices, tenets or teachings.
Even with the deletion of the overt religious practices language, the
new H.R. 7 still extends the Title VII exemption (allowing
religious-based employment discrimination) to taxpayer-funded programs
under "Charitable Choice." If this exemption is extended in
this way, it will result in the same religious practices discrimination
that is supposedly being stricken. The courts have recognized that
institutions eligible for this exemption may discriminate in employment
based on religious 93tenets and teachings, in addition to simply
refusing to hire someone of a certain religion. In other words, even
under this changed H.R. 7, a publicly funded program could discriminate
in employment against an applicant or employee if they are: unmarried
and pregnant; divorced; gay or lesbian; or engage in any other activity
that violates the tenets and teachings of the groups religion.
In addition, the Employment Practices section of the revised H.R. 7
contains incredibly broad, new language that would override other civil
rights protections in the Federal laws governing social service
programs. For example, if the statute underlying a Federal grant program
requires that grantees not discriminate in hiring based on religion,
H.R. 7 would override that rule and allow for such discrimination in the
Federally funded program.
No more requirement of a secular
alternative
The new H.R. 7 deletes the requirement that a secular alternative always
be available (called a nonreligious alternative in the original bill.)
Instead, the bill now would permit people who object to a certain
group's religious character to be steered towards another religious
group that is unobjectionable to the person seeking help. Apparently,
only if all religious groups are objectionable to the beneficiary, does
the bill suggest the need for a truly secular option. An amendment was
offered at markup to restore the secular alternative, but it was
defeated by a party-line vote.
H.R. 7 still allows
lawsuits against state and local government
Despite promises made to the Conference of Mayors by main sponsor J.C.
Watts (R-OK), the new H.R. 7 still authorizes new lawsuits against city,
county and State governments and their officials, available for
religious organizations who believe that they were denied funding
opportunities because of their religious character. Of course, this
blatantly ignores current Supreme Court case law that prohibits the
direct government funding of programs that cannot separate religious
activity from the delivery of social services (which the Bush Justice
Department even acknowledges.) This will put state and local agencies in
a legal Catch-22 whatever decision a state agency makes about directly
funding a house of worship directly will result in a wave of litigation.
This wave of litigation will bog down the grant process and result in
fewer people receiving quality services.
Judiciary Committee rejects protection of minority
religions
During markup of the new H.R. 7, one Judiciary Committee backer of
Charitable Choice boasted that he was pleased to support the measure
because no weird cults would be able to get funding under the
legislation. However, one person's cult is another person's faith.
To ensure protection of minority religions in the grant process, an
amendment was offered to protect religious groups against discrimination
because of their religious character (the bill now only protects against
discrimination against a group because it is religious or has a
religious character. Under the current bill there is no remedy if a
minority religion believes it was discriminated against in favor of the
more popular religion, even though the minority faith was more qualified
to carry out the services. The amendment to protect minority faiths from
discrimination was defeated by the backers of Charitable Choice.
The truth about the Clinton
administration and "charitable choice"
Backers of "Charitable Choice" continuously state that
President Clinton signed bills with "Charitable Choice" during
his administration. But what they fail to mention is that
"Charitable Choice" was included in Omnibus bills, and the
Clinton Administration determined that "Charitable Choice"
would be unconstitutional in application. In signing statements of bills
that contained "Charitable Choice," President Clinton made
clear that Charitable Choice would not be implemented according to the
authors intent. For example, the following is from President Clinton's
signing statement on the Community Services Block Grant (CSBG) in
October 1998:
"The Department of Justice advises, however, that the provision
that allows religiously affiliated organizations to be providers under
CSBG would be unconstitutional if and to the extent it were construed to
permit governmental funding of pervasively sectarian organizations, as
that term has been defined by the courts. Accordingly, I construe the
Act as forbidding the funding of pervasively sectarian organizations and
as permitting Federal, State, and local governments involved in
disbursing CSBG funds to take into account the structure and operations
of a religious organization in determining whether such an organization
is pervasively sectarian."
The Clinton Administration did not promulgate any new rules or
regulation for Charitable Choice, and continued to operate programs
under Constitutional principles the rules that have allowed
religiously-affiliated groups, such as Catholic Charities, Lutheran
Services, United Jewish Communities, and thousands of others, to
participate in government programs for decades, without discriminating
in employment, proselytizing beneficiaries and subjecting state and
local government to endless litigation.
