ACLU Comments on Proposed Rule Governing Participation in Justice Department Programs by Religious Organizations and Providing for Equal Treatment of all Justice Department Program Participants (RIN 1105-AA83)

Patrick Purtill, Director
Task Force for Faith-Based and Community Initiatives
Office of the Deputy Attorney General
Department of Justice

Re: Comments on Proposed Rule Governing Participation in Justice Department Programs by Religious Organizations; Providing for Equal Treatment of all Justice Department Program Participants (RIN 1105-AA83)

Dear Mr. Purtill:

The American Civil Liberties Union respectfully submits these comments urging the Department of Justice (DOJ) to revise the proposed rule governing the participation of religious organizations in DOJ programs. As written, the proposed rule is inconsistent with constitutional requirements, exceeds the Department’s statutory authority, and does not sufficiently detail the scope of constitutionally prohibited religious activities that must be excluded from federal programs. Unless substantially revised, the proposed rule will likely result in the Department of Justice and organizations receiving DOJ funds engaging in unconstitutional or otherwise illegal conduct.

The Proposed Rule Will Likely Result in Unconstitutional and Illegal Employment Discrimination

The proposed rule abets unconstitutional illegal employment discrimination based on religion as it purports to provide an exemption to the statutory prohibition against employment discrimination. The paragraph providing that a religious organization does not forfeit its exemption under Title VII of the Civil Rights Act of 1964 is nothing short of bizarre. Unlike statutes that authorize an exemption to Title VII for religious organizations participating in welfare reform, community services, and substance abuse programs, Congress has never authorized an exemption to Title VII for government-funded religious discrimination.

In fact, the current Administration, despite active lobbying by DOJ, rejected legislation offered during the last Congress that would have provided the exemption that DOJ now claims is available. As DOJ well knows, that legislation failed. As a result, there is no exemption to Title VII for government-funded religious discrimination in DOJ programs. Any DOJ-funded religious organization discriminating based on religion will be subject to the same Title VII liability as any other employer. DOJ should delete this unauthorized paragraph.

Moreover, even if Congress had provided an exemption to Title VII, the entire proposition that a religious organization can discriminate with federal dollars is unconstitutional. The charitable choice provisions authorized for the three HHS programs improperly allow a religious organization receiving funds to retain its exemption from the provision in Title VII of the Civil Rights Act of 1964 generally prohibiting religious discrimination in employment. For example, the employment practices provision for the TANF welfare reform program provides that “”the participation of a religious organization in, or its receipt of funds from, an applicable program does not affect that organization’s exemption under 42 U.S.C. 2000e-1 regarding employment practices.”” 67 Fed. Reg. at 77363. The referenced section Title VII permits religious organizations to prefer members of their own religion when making employment decisions. Although the Supreme Court upheld the constitutionality of the religious organization exemption in Title VII, Corporation of Presiding Bishop v. Amos, 483 U.S. 327, 336-39 (1987), the Court did not consider whether a religious organization could discriminate based on religion when making employment decisions in programs that the government finances to provide governmental services.

Several courts have considered whether a religious organization can retain its Title VII exemption after receipt of indirect federal funds, e.g., Siegel v. Truett-McConnell College, Inc., 13 F. Supp.2d 1335, 1344 (N.D. Ga. 1994) (clarifying that its decision permitting a religious university to invoke the Title VII exemption is because the government aid is directed to the students rather than the employer), but only one federal court has decided the constitutionality of retaining the Title VII exemption after receipt of direct federal funds, Dodge v. Salvation Army, 1989 WL 53857 (S.D. Miss. 1989). In that unreported decision, the court held that the religious employer’s claim of its Title VII exemption for a position “”substantially, if not exclusively”” funded with government money was unconstitutional because it had “”a primary effect of advancing religion and creating excessive government entanglement.”” Id. The analysis applied by the court in Dodge should apply with equal force to the DOJ programs that would provide direct federal funds to religious organizations.

In addition to causing the Establishment Clause violation cited by the court in Dodge, the employment provisions in the proposed rule may also subject the government and any religious employer invoking the proposed rule to liability for violation of constitutional rights under the Free Exercise Clause and the Equal Protection Clause. Although mere receipt of government funds is insufficient to trigger constitutional obligations on private persons, a close nexus between the government and the private person’s activity can result in the courts treating the private person as a state actor. Rendell-Baker v. Kohn, 457 U.S. 830 (1982).

It is beyond question that the government itself cannot prefer members of a particular religion to work in a DOJ-funded program. The Equal Protection Clause subjects governments engaging in intentional discrimination on the basis of religion to strict scrutiny. E.g., United States v. Batchelder, 442 U.S. 114, 125 n.9 (1979); City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976). No government could itself engage in the religious discrimination in employment accommodated and encouraged by the proposed rule’s employment provision. Thus, the government would be in violation of the Free Exercise Clause and the Equal Protection Clause for knowingly funding religious discrimination.

Of course, a private organization is not subject to the requirements of the Free Exercise Clause and the Equal Protection Clause unless the organization is considered a state actor for a specific purpose. West v. Atkins, 487 U.S. 42, 52 (1988). The Supreme Court recently explained when there is a sufficient nexus between the government and the private person to find that the private person is a state actor for purposes of compliance with constitutional requirements on certain decisions made by participants in the government program:

[S]tate action may be found if, though only if, there is such a ‘close nexus between the State and the challenged action’ that seemingly private behavior ‘may be fairly treated as that of the State itself.’ . . . We have, for example, held that a challenged activity may be state action when it results from the State’s exercise of ‘coercive power,’ when the state provides ‘significant encouragement, either overt or covert,’ or when a private actor operates as a ‘willful participant in joint activity with the State or its agents’ . . . . .

Brentwood Academy v. Tennessee Secondary School Athletic Association, 121 S. Ct. 924, (2001) (citations omitted).

The extraordinary role that the government has taken in accommodating, fostering, and encouraging religious organizations to discriminate based on religion when hiring for DOJ programs creates the nexus for constitutional duties to be imposed on the provider, in addition to the requirements already placed on government itself. There is no doubt that DOJ understands what it is doing in stating that DOJ-funded religious organizations can engage in religious discrimination in employment. The clear intent of the proposed rule is to encourage certain providers receiving federal funds to discriminate based on religion.

The proposed rule’s employment provision is part of a growing pattern of congressional, presidential, and regulatory actions taken specifically for the purpose of accommodating, fostering, and encouraging federally-funded private organizations to discriminate in ways that would unquestionably be unconstitutional if engaged in by the federal government itself. The proposed rule followed Executive Order 13279, which amended an earlier executive order, which had provided more than 60 years of protection against discrimination based on religion by federal contractors. The Bush order provides an exemption for religious organizations contracting with the government to discriminate in employment based on religion. In addition, the federal government is simultaneously proposing to allow religious organizations to discriminate based on religion in employment for federal programs involving substance abuse counseling, welfare reform, housing, and veterans benefits.

The Proposed Rule Does Not Provide Grantees With Clear Notice of Statutory Prohibitions on Religious Discrimination in Department of Justice Programs

The proposed rule does not provide grantees with clear notice of the binding force of existing “”statutory provisions requiring that all grantees agree not to discriminate in employment on the basis of religion.”” Numerous authorizing statutes for DOJ programs contain specific statutory prohibitions on discrimination based on religion in those programs. E.g., 42 U.S.C. 3789d(c); 42 U.S.C. 10504; 42 U.S.C. 10604(e). Because the statutory nondiscrimination provisions do not exclude employment decisions, as Title VI largely does, employment decisions are within the coverage of the nondiscrimination provisions. Thus, even if a religious organization receiving or administering DOJ funds can somehow escape Title VII liability for imposing a religious test on employees in the DOJ-funded program, the program-specific statutory nondiscrimination provision completely bars DOJ from providing any federal funds to a provider that will discriminate based on religion in hiring persons to provide services with those DOJ funds.

The proposed rule cannot simply refer grantees to the “”appropriate Department program office to determine the scope of any applicable requirements,”” but instead must provide specific directions on which programs statutorily bar religious discrimination. In the absence of such clarity, Department employees and grantees likely will misunderstand the statutory prohibitions.

The Proposed Rule Raises Serious Establishment Clause Concerns

The proposed rule authorizes religious organizations to provide publicly funded benefits and services. Although the proposed rule indicates its intention to limit the role of faith-based groups to conduct consistent with the Establishment Clause of the United States Constitution, it falls far short of that goal.

The proposed rule also does not sufficiently detail the scope of religious content that must constitutionally be omitted from government-funded programs. It authorizes, or does not expressly prohibit, conduct-such as holding publicly funded programs in facilities adorned with religious icons and issuing invitations, during government-sponsored programs, to later prayer sessions-that will unconstitutionally convey the message that the government endorses religious beliefs. And, in violation of binding Supreme Court precedent, it permits direct grants of public dollars to organizations whose religious mission subsumes all secular functions, including the elimination of all safeguards for the work of government-funded chaplains and groups “”assisting”” chaplains.

First, although the proposed rule specifies that no DOJ funds may be used for “”inherently religious activities,”” it fails to clarify the scope of religious activity that must, by mandate of the Constitution, be omitted from publicly funded programs. The proposed rule defines “”inherently religious activities”” only as conduct “”such as worship, religious instruction, or proselytization.”” As further guidance, in the supplementary section of the proposed rule, the Department of Justice states that “”inherently religious activities”” include “”for example, conduct[ing] prayer meetings, studies of sacred texts, or any other activity that is inherently religious.”” Such guidance is insufficient to ensure that grantees do not run afoul of the Constitution. The proposed rule must be clear:[1] Religious organizations using public funds to provide social services must provide those services in an entirely secular manner. The list of examples provided by the proposed rule does too little to prevent the unconstitutional inclusion of religious messages in government-financed programs.

For example, although none of the following scenarios falls clearly within the “”inherently religious activities”” barred by the proposed rule, each violates the Establishment Clause and therefore must be prohibited:

• A faith-based organization receives federal funds to run a vocational training program. The counselors running the program use Bible stories to help emphasize the importance of a good work ethic.
• A faith-based organization receives federal funds to run a welfare-to-work program. As one presentation for program participants, the organization puts on a skit in which Jesus appears as a character forgiving past sins and encouraging a fresh start.
• A faith-based organization receives federal funds to run a drug treatment program. The program’s counselors encourage participants to accept and trust in a higher power as one of many steps necessary for recovery.

These scenarios are based on actual conduct, by recipients of public funds, that have been held unconstitutional. For example, in a lawsuit challenging the state of Louisiana’s distribution of federal dollars to faith-based organizations in the context of abstinence education, the ACLU established (among many other constitutional violations) that one faith-based organization had used the story of Joseph and Mary and the virgin birth to teach teenagers the importance of abstinence; that others relied heavily on scriptural precepts to promote abstinence; and that others used theatrical skits with Jesus as a character to teach the importance of abstinence. The United States District Court for the Eastern District of Louisiana held that the use of public dollars for such conduct violates the Establishment Clause. ACLU v. Foster, 2002 WL 1733651 (E.D.La.)

The risk of the occurrence of such conduct is very real, and the proposed rule must be changed to make clear that it is impermissible. To ensure that the use of DOJ dollars does not violate the Establishment Clause, the proposed rule must be changed to make clear that the government may not “”disburs[e] [public] funds to organizations or individuals that convey religious messages or otherwise advance religion in any way in the course of any event supported in whole or in part by [public] funds, or in any document or other resource produced ? in whole or in part using [public] funds.”” ACLU v. Foster, 2002 WL 1733651 (E.D.La.)

Second, the proposed rule authorizes conduct that will impermissibly convey the message that the government endorses religious content. For instance, the proposed rule allows organizations to use their facilities for government-financed programs “”without removing religious art, icons, scriptures, or other symbols.”” The proposed rule also does not expressly prohibit personnel running the taxpayer-funded programs from wearing clerical garb or inviting participants to attend subsequent religious worship sessions. Yet allowing such intermingling of government financing and religious content impermissibly fosters the impression of government support for a religious mission. See, e.g., County of Allegheny v. American Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573, 592-93 (1989) (holding that government actions with the purpose or effect of endorsing religion violate the Establishment Clause); see also Mitchell v. Helms, 530 U.S. 793, 843 (2000) (O’Connor, J., concurring) (government-financed programs violate the Establishment Clause if “”the reasonable observer would naturally perceive the aid program as government support for the advancement of religion””) (emphasis in original). The proposed rule must be changed to remedy these constitutional deficiencies.

Third, the proposed rule allows the direct granting of public dollars to organizations, such as churches and religious seminaries, in which religious missions overpower secular functions. Yet binding Supreme Court authority forbids the direct grant of public dollars to such organizations. In Bowen v. Kendrick, 487 U.S. 589, 610 (1988), the Supreme Court held that the government may not issue direct money grants to institutions in which “”religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission.”” See also Mitchell 530 U.S. at 819-20 (plurality opinion) (recognizing “”special Establishment Clause dangers”” when public dollars flow to such sectarian institutions); id. at 855 (O’Connor, J., concurring) (noting “”our continued recognition of the special dangers associated with direct money grants to [such sectarian] institutions””). The Court explained that the ban on direct financial aid to such institutions is necessary because “”there is a risk that direct government funding, even if it is designated for specific secular purposes, may nonetheless advance the pervasively sectarian institution’s ‘religious mission.'”” Id. at 610; see also id. at 612 (“”[I]n the context of aid to [such] institutions . . . there [i]s a ‘substantial’ risk that aid to these religious institutions would, knowingly or unknowingly, result in religious indoctrination.””). To meet constitutional mandates, the proposed rule must be changed to prohibit direct financial grants to such sectarian institutions.

The Department Does Not Have the Constitutional or Statutory Authority to Require States to Waive, for Their Own Funds, State Laws that Are More Protective of Individual Rights than the Federal Rules

The proposed rule is unclear on whether it requires states to apply the proposed rule to its own funds. Statements in the proposed rule such as “”[n]o state or local government receiving funds under any Department program shall discriminate against an organization on the basis of the organization’s religious character or affiliation”” could be construed as meaning that the state has no option to segregate all of its own funds from the federal funds for purposes of applying stronger state protections against establishing a religion or infringing on the religious exercise of any person.

The Department has no constitutional or statutory authority to require any state to forfeit the application of its own stronger state constitutional or statutory protections as a condition of qualifying for federal funds. Under the Constitution, only the Congress can authorize a program that requires states to waive stronger state protections as a condition of qualifying for federal funds. The authorizing statutes for the programs covered by the proposed rule provide absolutely no authority for forcing states to accept the weaker protections in the proposed federal rule as a condition for federal funds. Moreover, settled constitutional and statutory interpretation principles provide that states may provide stronger constitutional protections than the U.S. Constitution provides and that states may also provide stronger civil rights protections than the federal government provides. The Department has no authority for a proposed rule that contravenes both of these settled principles. The only way to avoid an unconstitutional and unauthorized act is for the Department to revise the proposed rule to clarify that it permits states to avoid the application of the federal rule to any of its funds.

The Proposed Rule Cannot Authorize a Voucher Program That Includes Religious Organizations Without Adequate Constitutional Safeguards

The proposed rule establishes a mechanism for the provision of vouchers without explicitly meeting the requirements recently laid out by the Supreme Court. While the Supreme Court decision, Zelman v. Simmons Harris, 536 U.S. 639, 122 S.Ct. 2460 (2002), has allowed the use of vouchers at religious schools, it also established a strict set of requirements that must be met in order to make a voucher program constitutional. According to the Court, a voucher program must be completely neutral with respect to religion, use of vouchers at a religious institution must be a wholly genuine and independent private choice, the vouchers must pass directly through the hands of the beneficiaries, the voucher program must not provide incentives to choose a religious institution over a non-religious one, the program must provide genuine, legitimate secular options, and there must be a secular purpose for the program. Id.

The proposed rule must be revised to comply with the strict framework laid out by the court in Zelman. The most challenging issue the proposed rule must address is the existence of “”real choice.”” The proposed rule must necessarily limit voucher programs to those communities in which wide-ranging secular options are available. Currently, it is unclear that this standard can be met in many, if any, places in this country. Unlike the education context, in the social service context, there is no clearly comparable and available public, charter, magnet, or private social service structure in place to ensure real choice, including secular alternatives.

The Proposed Rule Must Establish a Rule that Beneficiaries Have a Right to Secular Service Provider Alternatives and Must Be Given Proper Notice of This Right

First, the proposed rule must clearly state the rights of beneficiaries to object to a religious provider assigned to them or to receive an alternative secular provider. The proposed rule must require providers to ensure that beneficiaries’ rights are protected. The proposed rule gives states virtually unbridled discretion in determining how beneficiaries receive notice of their right to object to a religious provider and their right to an alternative provider. In addition to clearly establishing this right, the rule must define the time within which a referral to an alternative provider must be made, how accessible the program must be, and whether the services provided will be comparable.

The proposed rule must include a provision to protect beneficiaries who object to the religious character of a provider and it must provide standards to guide the states and ensure remedies for beneficiaries. The propose rule must, for example, require states and/or providers to notify beneficiaries of their rights and options. By the same token, the rule should require that referrals be made in a set number of days, not less than five for example, and provide similar guidance for all undefined terms. The rule must also provide a grievance process for beneficiaries who are not promptly provided with an adequate alternative. The rule must ensure protections against, for example, the government establishing a program whereby an individual is assigned and forced to remain for any period with a religious provider, contrary to his or her beliefs.

A person cannot be forced to make a choice between government-funded programs, all of which are religious. The rule needs to be clarified to state that if a person objects to being assigned to a religious provider the government must provide a secular alternative. In light of the lack of clear prohibitions on religious content in the services, the need for this clarification is certainly heightened.

The Proposed Rule Must Provide Safeguards to Mitigate the Potential Constitutional Violation and Provide Adequate Oversight and Monitoring of Grantees

The proposed rule would remove those provisions of DOJ’s current regulations that specifically require DOJ-funded religious organizations to provide assurances that they will conduct eligible program activities in a manner that is “”free from religious influences.”” The proposed rule argues that it is unfair to require only religious organizations to provide such assurances and therefore removes the requirement all together. Although the ACLU does not oppose extending the requirement of making assurances to all recipients, given the Establishment Clause dangers of providing government funding to faith-based organizations for the provision of social services, the proposed rule must include assurances that make clear to all participants that DOJ-funded activities must be carried out in an entirely secular manner. For example, the proposed rule should require that the contracts between a government agency and its grantees specify that government funds may not support programs or materials that convey religious messages or otherwise promote religion.

The proposed rule should also require monthly reports from grantees detailing whether religious content has been included in any publicly funded program. Periodic site visits to publicly funded programs should be required to ensure compliance with the Establishment Clause. Grantees should be required to notify participants in publicly funded events that, by mandate of the Constitution, any promotion of religion is impermissible and any pressure that they participate in religious activities is impermissible. Such measures are necessary to mitigate the constitutional concerns raised by the proposed rule.

Please do not hesitate to call us if you need any additional information regarding this matter.

Respectfully submitted,

Laura W. Murphy
Executive Director

Christopher E. Anders
Legislative Counsel

[1] The need for clarity on this issue is evident from the comments of those entities now implementing the Charitable Choice provisions. In a September 2002 survey of five states conducted by the General Accounting Office in response to a request by Congress, faith-based organizations and government officials involved in implementing federal Charitable Choice provisions expressed great confusion about what activities are “”allowable ? under the prohibition on the use of federal funds for religious instruction and proselytizing.””