CHARITABLE CHOICE: BACKGROUND AND SELECTED LEGAL ISSUES
CRS Report for Congress
Charitable Choice: Constitutional
Issues and Developments
Through the 106 Congress
Updated December 27, 2000
David M. Ackerman
American Law Division
Congressional Research Service ˜ The Library of Congress
Charitable Choice: Constitutional Issues and
Developments Through the 106th Congress
Charitable choice seeks to expand the universe of religious organizations that
can participate in publicly funded social service programs. The establishment of
religion clause of the First Amendment has long been construed to allow religious
organizations to participate in such programs. But in the past it has generally been
interpreted to require publicly funded religious social services providers to be
incorporated separately from their sponsoring religious institutions, to forego
religious activities and proselytizing in the publicly funded programs, and to remove
religious symbols from the premises where the services are provided. Charitable
choice attempts to allow religious organizations to retain their religious character and
to employ their religious faith in carrying out publicly funded programs.
Four charitable choice provisions have been enacted into law (although two
overlap), and in the 106th Congress either the House or the Senate or a committee
approved an additional seven. All of these provisions state their purpose to be to
allow religious organizations to participate as contractors or grantees in publicly
funded social service programs “on the same basis as any other nongovernmental
provider” without impairing their religious character. To protect their religious
character, the provisions direct that a religious grantee or contractor “shall retain ...
control over the definition, development, practice, and expression of its religious
beliefs”; bar government from discriminating against an applicant “on the basis that
the organization has a religious character”; prohibit government from requiring such
an organization to alter its form of governance or to remove religious art and other
symbols as a condition of eligibility; specify that religious contractors and grantees
can discriminate on religious grounds in their employment practices; and (with two
exceptions) allow such contractors and grantees to use their own funds to promote
sectarian worship, instruction, and proselytization in the funded programs.
But in part as the result of amendments adopted on the Senate floor during the
welfare reform debate, the charitable choice provisions also all require that the
programs be implemented in a manner consistent with the establishment clause; bar
the use of public funds received directly by religious organizations (but not indirectly,
if the underlying program so allows) for “sectarian worship, instruction, or
proselytization”; and permit government to require religious grantees to be separately
incorporated from their sponsoring religious institution.
As a consequence of these various provisions, questions have been raised about
the internal consistency of the charitable choice measures and whether administering
agencies can, in fact, comply with all of their terms. Questions have also been raised
about the constitutionality of charitable choice under the establishment clause.
This report provides background on the concept of charitable choice,
summarizes the provisions and the legislative histories of the measures that have
been approved, and examines the constitutional issues raised by such measures. It
concludes with a chart comparing the provisions of the measures acted on to date.
The report will not be updated.
In troduction ..................................................1
Charitable Choice Measures Enacted into Law.......................4
(1) Welfare Reform (P.L. 104-193)............................4
(2) Community Services Block Grant Program (P.L. 105-285)......7
(3) Substance Abuse Prevention and Treatment Programs under
Titles V and XIX of the Public Health Services Act
(P.L. 106-310 and P.L. 106-554).........................10
Other Charitable Choice Measures Adopted by the House, Senate, orth
Committee in the 106 Congress.............................17
(1) Juvenile Justice (S. 254, H.R. 1501).......................17
(2) Fathers Count Act (H.R. 3073)...........................18
(3) Child Support Distribution Act of 2000 (H.R. 4678)...........19
(4) American Homeownership and Economic Opportunity Act
(5) Even Start Family Literacy Programs (H.R. 3222)............22
(6) Education OPTIONS Act (H.R. 4141)......................24
Other Charitable Choice Measures That Were Introduced in the
(1) Direct aid............................................27
(2) Indirect aid...........................................34
Appendix: Comparison of Charitable Choice Provisions That Have
Received Legislative Action ....................................37
Charitable Choice: Selected Legal Issues
and Developments Through the 106
Charitable choice is the name given a burgeoning legislative effort to expand the
universe of religious organizations that can participate in publicly funded social
services programs. Under the establishment of religion clause of the First
Amendment,1 religious organizations have long been held to be eligible to participate
as grantees or contractors in such programs. But the establishment clause has in the
past generally been interpreted to bar government from providing direct assistance
to organizations that are “pervasively sectarian.” As a consequence, government
funding agencies have often required religious social services providers, as
conditions of receiving public funds, to be incorporated separately from their
sponsoring religious institutions, to refrain from religious activities and proselytizing
in the publicly funded programs, and to remove religious symbols from the premises
in which the services are provided. The establishment clause, in short, has been
construed to require religious organizations to secularize their services and premises
as conditions of obtaining public funding. As a concept, charitable choice challenges
these restrictions and seeks to allow religious organizations to retain their religious
character and to employ their faith in carrying out programs that are directly
subsidized by government.
A charitable choice provision was first enacted into law in 1996 as part of the
“Personal Responsibility and Work Opportunity Reconciliation Act of 1996" (the
welfare reform measure).2 In 1998 Congress enacted into law a modified charitable
choice provision as part of the reauthorization of the Community Services Block
Grant Program.3 In 2000 it added two overlapping charitable choice provisions to the
drug abuse treatment and prevention titles of the Public Health Service Act by means
of the “Children’s Health Act”4 and the “Community Renewal Tax Relief Act of
1 The First Amendment provides in pertinent part that “Congress shall make no law
respecting an establishment of religion ....”
2 P.L. 104-193, Title I, § 104 (Aug. 22, 1996); 110 Stat. 2161; 42 U.S.C.A. 604a. The
charitable choice provisions applied as well to the welfare-to-work grant program added to
the Temporary Assistance to Needy Families (TANF) program in 1997. See P.L. 105-33,
Title V, Subtitle A (Aug. 5, 1997); 111 Stat. 251, 577.
3 P.L. 105-285, Title II, § 201 (Oct. 27, 1998); 112 Stat. 2749; 42 U.S.C.A. 9920.
4 P.L. 106-310, Title XXXIII, § 3305 (Oct. 17, 2000); 42 U.S.C.A. 300x-65.
2000.”5 A number of other charitable choice provisions also received favorable
consideration in either the House or the Senate in the 106th Congress, although they
were not enacted into law, as follows:
!Both the House and the Senate adopted charitable choice provisions
in their versions of the juvenile justice bill (H.R. 1501 and S. 254).
!The House passed an additional four measures that included
charitable choice provisions – the “Fathers Count Act” (H.R. 3073),
which was subsequently passed again as part of the “Child Support
Distribution Act of 2000" (H.R. 4678); the “American
Homeownership and Economic Opportunity Act of 2000" (H.R.
!The House Committee on Education and the Workforce reported one
additional measure that included a charitable choice section – the
“Education Opportunities To Protect and Invest in Our Nation’s
Students (Education OPTIONS) Act” (H.R. 4141).
The provisions of two of these measures – the “American Homeownership and
Economic Opportunity Act” and the “Literacy Involves Families Together Act” –
were ultimately enacted into law as parts of other bills. But in both instances the
charitable choice provisions were eliminated.6
These charitable choice provisions differ in some details, but they all share a
number of common provisions. The charitable choice measures all, explicitly or by
reference, state their purpose to be
(1) to allow religious organizations to participate as contractors or grantees
in publicly funded social service programs “on the same basis as any other
nongovernmental provider” without impairing the religious character of such
To that end the provisions all
(2) direct that a religious grantee or contractor “shall retain ... control over
the definition, development, practice, and expression of its religious beliefs”;
(3) bar government from discriminating against an applicant “on the basis
that the organization has a religious character”;
(4) prohibit government from requiring such an organization to alter its
form of internal governance or to remove religious art and other symbols as a
condition of eligibility; and
(5) specify that receipt of public funds does not alter the exemption
religious organizations have under Title VII of the Civil Rights Act of 1964
allowing them to discriminate on religious grounds in their employment
5 P.L. 106-554 (December 21, 2000). The measure was enacted as part of the omnibus
“Consolidated Appropriations Act, 2001.”
6 See infra at 20-23.
But, partly as the result of amendments adopted on the Senate floor during the
welfare reform debate in 1995-96, the charitable choice provisions also all
(6) require that the programs be implemented in a manner consistent with
the establishment clause (and, in two cases, with the free exercise clause as
(7) bar the use of public funds received directly by religious organizations
(but not indirectly in the form of vouchers, if the underlying program provides
for vouchers) for “sectarian worship, instruction, or proselytization”; and
(8) implicitly permit government to require religious grantees to be
separately incorporated from their sponsoring religious institution.
In addition, most, but not all, of the charitable choice provisions that have been
enacted or approved so far
(9) implicitly allow such contractors and grantees to use their own
resources to promote sectarian worship, instruction, and proselytization in the
(10) bar religious organizations that receive funds under the pertinent
programs from discriminating against beneficiaries “on the basis of religion, a
religious belief, or refusal to actively participate in a religious practice”;
(11) require that beneficiaries who object to the religious character of an
organization providing services be afforded an alternate and accessible provider
(12) provide for government audits of the religious organizations’ use of the
federal funds provided.
A smaller number of the charitable choice measures
(13) provide that the charitable choice provisions do not preempt state
constitutions or statutes “that prohibit or restrict the expenditure of State
funds in or by religious organizations”;
(14) specify that receipt of financial assistance constitutes receipt of federal
financial assistance for purposes of applying federal civil rights statutes, and
(15) bar religious organizations from using their own funds to engage
participants in religious worship, instruction, or proselytization in the funded
Finally, two additional elements proposed in some of the charitable choice initiatives
which, with one exception, have generally been rejected would have
(16) barred public agencies from requiring a religious organization to form
a separate nonprofit entity to receive and administer funds under the bill, and
(17) allowed participating religious organizations to require employees to
adhere to their religious tenets and to abide by any rules regarding the use of
drugs or alcohol.
As a consequence of these various provisions, questions have been raised about
the internal consistency of the charitable choice measures, whether some of the
provisions undermine and contradict the intent of charitable choice to allow religious
organizations to employ their faith in carrying out publicly funded social services
programs, and whether administering agencies can, in fact, comply with all of their
terms. Questions have also been raised about the constitutionality of charitable
choice under the establishment of religion clause of the First Amendment. The latter
two issues of administrative feasibility and constitutionality are interrelated, and both
have been further complicated by recent Supreme Court decisions that appear to
loosen the restrictions the Court has previously imposed on direct aid to sectarian
institutions pursuant to the establishment clause.7 Indicative of the questions
surrounding the constitutionality of charitable choice, it should be noted that at least
one suit has now been filed challenging the constitutionality of a charitable choice
program in Texas,8 and another relevant suit has been filed in Kentucky. The latter
suit does not involve a charitable choice program as such but challenges the
constitutionality of one of its central provisions, namely, religious discrimination in
the employment practices of a religious organization that receives public funds to
provide child welfare services.9
The following sections (1) summarize the legislative histories of the four
charitable choice measures that have been enacted into law as well as the seven that
were passed by either the House or the Senate or committee in the 106th Congress,
and (2) set forth the framework of the constitutional issues. To simplify comparison
of the various charitable choice measures in these laws and bills, an Appendix lays
out their provisions in table form.
Charitable Choice Measures Enacted into Law
(1) Welfare Reform (P.L. 104-193). In 1996 Congress enacted the first
charitable choice provision as part of the “Personal Responsibility and Work
Opportunity Reconciliation Act,” which reformed the welfare system.10 That
provision included all of the elements in ## 1-13 above, but not those in ## 14-17.
Charitable choice had first surfaced during the Senate’s consideration of welfare
reform in 1995. It was not in the welfare reform bill (H.R. 4) initially passed by the11
House that year, nor was it in the version subsequently reported by the Senate
Finance Committee.12 But a charitable choice provision had been part of a welfare
7 The pertinent decisions are Agostini v. Felton, 521 U.S. 203 (1997) and Mitchell v. Helms,
8 American Jewish Congress and Texas Civil Rights Project v. Bost, No. ___ (Travis
County, Texas, filed July 24, 2000). The lawsuit charges that a job training and placement
program funded by the Texas Department of Human Services and operated by the Jobs
Partnership of Washington County is “permeated” by Protestant evangelical Christianity in
violation of both the Texas and U.S. constitutions.
9 Pedreira v. Kentucky Baptist Homes for Children, Case No. ___ (E.D. Ky., filed April 17,
2000). The lawsuit charges that the dismissal of an employee whose position was funded
by state funds on the grounds her sexual orientation was contrary to the employer’s religious
tenets violates the establishment of religion clause
10 P.L. 104-193, Title I, § 104 (Aug. 22, 1996); 110 Stat. 2161; 42 U.S.C.A. 604a.
11 141 CONG. REC. H 3790 (daily ed. March 24, 1995).
12 S.Rept. No. 104-96, 104th Cong., 1st Sess. (June 12, 1995).
reform bill which had previously been introduced by Sen. Ashcroft (R-Mo.)13, and
it re-emerged in August, 1995, as part of a leadership substitute proffered by the
Majority Leader, Sen. Dole (R.-Kn.), for the bill that had been reported by the Senate
Finance Committee.14 The provision was included, reportedly, at the initiative and
urging of Sen. Ashcroft.
After further modification a few days later by Sen. Dole,15 the charitable choice
section in the leadership substitute specified that the states could make grants to, or
contracts with, religious organizations to administer elements of the “Temporary
Assistance for Needy Families” program (TANF). The measure contained the first
five provisions noted above protecting the religious character and independence of
religious grantees and contractors, a truncated version of the limitation noted in # 7
above barring the use of direct assistance (but not assistance in the form of vouchers
and not the organizations’ own funds) for “sectarian worship or instruction,” and the
protections for beneficiaries in ## 10 and 11 above. In addition, the leadership
substitute included the provisions in ## 16 and 17 above barring funding agencies
from requiring a religious organization to form a separate nonprofit entity to receive
and administer funds under the bill and allowing participating religious organizations
to require employees to adhere to their religious tenets and to abide by any rules
regarding the use of drugs or alcohol.
During floor debate in September, 1995, on the leadership substitute, Sen.
Cohen (R.-Me.) proposed two amendments to the charitable choice section. The first
proposed to add language requiring the programs to be “implemented consistent with
the Establishment Clause of the United States Constitution” and to delete the
language precluding funding agencies from requiring the recipient organizations to
be incorporated separately from their sponsoring religious organizations.16 His
second amendment proposed the deletion of the language barring funding agencies
from requiring the recipient organization to remove religious art, icons, scripture, and
other symbols.17 Sen. Kennedy (D.-Ma.), in turn, offered an amendment to delete the
charitable choice provisions in their entirety.18 But only Sen. Cohen’s first
amendment was acted upon by the Senate.
Sen. Cohen contended that “the bill in its present form does too little to restrain
religious organizations from using Federal funds to promote a religious message.”19
He also contended that prohibiting the states from asking a religious organization to
set up a separate nonprofit corporation to receive the money and administer the
programs would actually inhibit the participation of religious organizations. The
Supreme Court, he said, has held the establishment clause to be violated by
13 See S. 842, 104th Cong., 1st Sess. (1995).
14 141 CONG. REC. S 11640, 11648 (daily ed. August 5, 1995).
15 Id. at S 12428, 12437-38 (daily ed. August 11, 1995).
16 Id. at S 24189 and, as slightly modified, at S 24214 (Sept. 8, 1995).
17 Id. at S 24233-34.
18 Id. at S 24247.
19 Id. at S 24845 (daily ed. Sept. 13 1995).
government grants to religious organizations that are “permeated with sectarianism”;
and states will, if they do not have the separate nonprofit corporation option, avoid
dealing with some religious organizations because they “are not going to want to
walk into a lawsuit ... that will challenge the program as being violative of the first
amendment.”20 Sen. Ashcroft (R.-Mo.) opposed the second part of the amendment
on the grounds it provided no certain protection against lawsuits and placed a barrier
to the participation of religious organizations that was imposed on no other kind of
organization. “What we really ask for,” he stated, “is that there be a level playing
field here” for religious and nonreligious organizations.21 After a division of Sen.
Cohen’s amendment, the part requiring programs to be implemented consistent with
the establishment clause was adopted by voice vote; and the other part giving funding
agencies the discretion to require the recipient organization to be separately
incorporated from its sponsoring religious organization was adopted by a vote of 59-
The House, as noted above, had previously adopted a welfare reform measure
that did not include a charitable choice provision. In the subsequent House-Senate
conference, both parts of Sen. Cohen’s amendment were retained. But the
conference agreement deleted the provision in the Senate substitute which permitted
recipient organizations to require their employees to adhere to the organizations’
religious tenets and their rules regarding the use of alcohol or drugs (# 17 above)
while retaining the other provision noted in # 5 above allowing such organizations
to discriminate on religious grounds in their employment practices.24 The conference
agreement also slightly amended the provision barring direct assistance received by
such organizations (but not assistance received indirectly in the form of vouchers, or
their own funds) from being used for religious worship or instruction, adding a
prohibition on proselytizing as well. Finally, the agreement added the non-
preemption provision summarized in # 13 above.
Thus, the conference agreement resulted in a charitable choice section in
H.R. 4 that included all of the provisions in ## 1-13, but not those in ## 14-17,
above. Both the House and the Senate approved the conference agreement and sent
the bill to the President. However, on January 9, 1996, President Clinton vetoed the
measure for reasons having nothing to do with charitable choice.25
21 Id. at S 24848.
22 Id. at S 24851.
23 Id. at S 13802 (daily ed. Sept. 19, 1995).
24 H.Rept. 104-430 (Dec. 20, 1995). See text at 141 CONG. REC. H 15317, 15328, 15406
(daily ed. December 21, 1995).
25 See text of the veto message at 142 CONG. REC. H 342 (daily ed. Jan. 22, 1996). On
December 6, 1995, the President had also vetoed H.R. 2491, a massive reconciliation bill
that contained the provisions of welfare reform providing budgetary savings. But that bill
did not include a variety of other provisions that were included in H.R. 4, including the
charitable choice section.
Welfare reform re-emerged during the second session of the 104th Congress in
1996, and this time a modified version was enacted into law. Both the House and
the Senate included the charitable choice provisions that had been included in
the conference agreement during the first session in their revised welfare reform
measures without substantive change.26 The only action on charitable choice
occurred on a motion in the Senate to waive a point of order under the Budget Act
that would have excluded this section from the bill. After brief debate the motion to
waive the point of order (and thus to retain charitable choice in the bill) was adopted,
On August 22, 1996, President Clinton, without any comment on the charitable
choice provision, signed the welfare reform bill into law.28 In December, 1996, the
Department of Health and Human Services sent a package of proposed technical
corrections to the statute to Congress which included several changes to the
charitable choice section. The primary recommendation was to change references to
“religious organizations” in the charitable choice section to “religious organizations
that are not pervasively sectarian.” But Congress, reportedly due to the opposition
of Sen. Ashcroft, did not include that proposal in the technical and other amendments
to the program it adopted in 1997.29 As noted above, those amendments included
the addition of a welfare-to-work grant initiative to the TANF program which was
automatically subject to the charitable choice provisions previously enacted.
(2) Community Services Block Grant Program (P.L. 105-285). Theth
second charitable choice measure was enacted by the 105 Congress in 1998 as part
of the re-authorization of the “Community Services Block Grant Act.”30 As enacted,
the charitable choice section contained all of the provisions in ## 1-9 and # 12
plus a generalized version of # 10, but not the ones summarized in ## 11 and 13-
Both as introduced by Sen. Coats (R.-Ind.)31 and as reported by the Senate
Committee on Labor and Human Resources on July 21, 1998,32 the re-authorization
measure for the Community Services Block Grant program (S. 2206) included a
charitable choice section. But the bill did not fully replicate the charitable choice
provisions that had been contained in the welfare reform bill. Instead, it included
only the general provision stating that faith-based organizations should be considered
26 See 142 CONG. REC. H 7989-90 (daily ed. July 18, 1996) and S 8582 (daily ed. July 23,
27 142 CONG. REC. S 8507-08 (daily ed. July 23, 1999). Subsequently, the measure was
retained by the House-Senate conference committee (see H.Rept. 104-725 at 142 CONG.
REC. H 8829, 8910 (daily ed. July 30, 1996)) and, thus, was part the bill when signed into
28 P.L. 104-193, Title I, § 104 (Aug. 22, 1996); 110 Stat. 2161; 42 U.S.C.A. 604a.
29 P.L. 105-33, Title V (Aug. 5, 1997); 111 Stat. 251, 577.
30 P.L. 105-285, Title II, § 201 (Oct. 27, 1998); 112 Stat. 2749; 42 U.S.C.A. 9920.
31 S. 2206, 105th Cong., 2d Sess. (June 23, 1998).
32 S.Rept. 105-256, 105th Cong., 2d Sess. (July 21, 1998), at 33 and 114.
as eligible providers of services “on the same basis as other nongovernmental
organizations”(# 1 above) and ## 3, 4 (in part), 6, 7, and 12 above barring
government from discriminating against applicant providers “on the basis that the
organization has a faith-based character”; prohibiting funding agencies from
requiring faith-based organizations to remove religious art, icons, scriptures, or other
symbols as a condition of eligibility; requiring that programs operated by faith-based
organizations be “implemented in a manner consistent with the Establishment Clause
...”; barring such organizations from using public funds received in the form of grants
or contracts “for sectarian worship, instruction, or proselytization”; and allowing a
limited audit of the organizations’ use of the federal funds. By its silence the bill as
introduced and reported also incorporated ## 8 and 9 above permitting government
to require religious grantees to be separately incorporated from their sponsoring
religious institution and allowing such grantees to use their own funds for sectarian
worship, instruction, and proselytization. Finally, the bill as introduced and reported
contained a requirement broader than # 10 barring discrimination against any person
on the basis of race, color, national origin, sex, age, disability, and religion. The
committee report described these provisions and then stated:
The committee notes the historical importance of such entities in serving the poor
and believes that they should not be precluded from participating in this program
either as a grant recipient or as an eligible entity. This language is consistent33
with provisions included in the 1996 Welfare Reform legislation.
Before the bill came up for debate on the Senate floor, however, the charitable
choice section was modified. Added to the provisions in the bill as introduced and
reported were ## 2, 4 (in part), and 17 above affirming that faith-based organizations
“shall retain ... control over the definition, development, practice, and expression of
[their] faith-based beliefs”; barring funding agencies from requiring faith-based
organizations to alter their form of internal governance; and allowing faith-based
organizations to “require that employees adhere to the [organizations’] religious
tenets and teachings and ... to rules forbidding the use of drugs or alcohol.” The
modified bill also deleted the broad prohibition barring discrimination against
beneficiaries. Floor debate on the bill was brief, and no controversy emerged on
charitable choice or any other aspect of the bill prior to its adoption on a voice vote.34
Thus, as adopted by the Senate, the charitable choice section included ## 1 - 9 plus
## 12 and 17 above.
In the House a comparable bill (H.R. 4271) had been introduced and reported35
by the House Committee on Education and the Workforce. That bill had a
charitable choice provision identical to the one in the Senate bill as originally
introduced and reported. But controversy developed over unrelated amendments that
had been added in the committee. As a consequence, the committee chairman, Rep.
Goodling (R.-Pa.), brought a modified version of S. 2206 to the floor instead of H.R.
33 Id. at 33.
34 144 CONG. REC. S 9067-9087 (daily ed. July 27, 1998). For the one justification of the
charitable choice provision, see S 9084 (statement of Sen. Jeffords).
35 H.Rept. 105-686 (August 7, 1998).
intact the charitable choice provisions that had been in H.R. 4271 and did not
replicate the changes made in the Senate. After brief debate, the House adopted S.
2206 by a vote of 346-20.36 Thus, the House-passed version of S. 2206 included ##1
and 3, part of # 4, ## 6-9, a broader version of # 10, and # 12 above.
The House-Senate conference on the two versions of S. 2206 largely acceded
to the Senate’s version of charitable choice. It accepted the Senate’s additions
regarding a faith-based organization’s control over the definition and expression of
its religious beliefs and barring government from requiring such an organization to
alter its form of internal governance as well as the Senate’s deletion of the
prohibition on religious discrimination. But it replaced the Senate addition allowing
faith-based organizations to “require that employees adhere to the [organizations’]
religious tenets and teachings and ... to rules forbidding the use of drugs or alcohol”
with the Title VII provision allowing such organizations to discriminate on religious
grounds in their employment practices that had been in the welfare reform measure.37
Thus, as reported by the conference committee and as enacted, the charitable
choice section of the Community Services Block Grant program contained all
of the provisions in ## 1-9 and # 12 above but not the ones summarized in # 11
and ## 13-17. A separate section of the bill contained a general
nondiscrimination provision broader than # 10. Both the House and the Senate
approved the conference report.38
On October 27, 1998, President Clinton signed S. 2206 into law.39 With respect
to the charitable choice provision, however, he said that its implementation would
be subject to the following limitation:
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 such40
an organization is pervasively sectarian.
36 144 CONG. REC. H 7620-7643, H 7671 (daily ed. Sept. 14, 1998).
37 See H.Rept. 105-788 (Oct. 6, 1998), reprinted at 144 CONG. REC. H 9697 et seq. (daily
ed. Oct. 6, 1998). The employment discrimination section provided that “[a] religious
organization’s exemption provided under section 702 of the Civil Rights Act of 1964 (42
U.S.C. 2000e-1) regarding employment practices shall not be affected by its participation
in, or receipt of funds from, programs described in section (a).” Section 702 affords
religious organizations a complete exemption from Title VII’s ban on religious
discrimination in employment.
38 See 144 CONG. REC. S 11865-11872 (daily ed. Oct. 8, 1998) and H 10201-10207 (daily
ed. Oct. 9, 1998).
39 P.L. 105-285, Title II, § 201 (Oct. 27, 1998); 112 Stat. 2749; 42 U.S.C.A. 9920.
40 134 Weekly Compilation of Presidential Documents 2148 (Nov. 2, 1998) (Statement on
(3) Substance Abuse Prevention and Treatment Programs under
Titles V and XIX of the Public Health Services Act (P.L. 106-310 and P.L.th
106-554). The 106 Congress enacted two overlapping charitable choice provisions
applicable to the substance abuse prevention and treatment programs authorized by41
Titles V and Part B of Title XIX of the Public Health Services Act. The first one,
enacted as part of the “Children’s Health Act of 2000”42 in October, 2000, amended
Part B of Title XIX, which authorizes the Substance Abuse and Mental Health
Services Administration (SAMHSA) in the Public Health Service to make block
grants to the states for substance abuse prevention and treatment programs. But it
stated that it is also applicable to the discretionary grant programs concerning
substance abuse administered by SAMHSA under Title V. The provision included
all of the charitable choice elements in ## 1-12 listed above plus limited versions
of ## 13 and 17. The modification of # 13, instead of saying that more restrictive
state laws regarding the public funding of religious organizations are not pre-empted,
mandates that the charitable choice provisions apply to any state funds contributed
to the federally funded substance abuse program unless the state opts to segregate its
funds from the federal funds. The modification of # 17 permits religious
organizations to require employees providing services in publicly funded substance
abuse programs to “adhere to rules forbidding the use of drugs or alcohol.”
The second charitable choice provision, enacted as part of the “Community
Renewal Tax Relief Act of 2000,”43 amended Title V of the Public Health Services
Act, which primarily authorizes discretionary grant programs for substance abuse
prevention and treatment administered by SAMHSA. But this provision also stated
that it is applicable to the block grants to the states authorized by Part B of Title XIX.
This provision included all of the elements in ## 1-12 above, although ## 5, 6, 10,
and 11 are somewhat modified. The employment practices section (# 5) includes,
in addition to the usual Title VII language, a provision stating:
Nothing in this section shall be construed to modify or affect the provisions of
any other Federal or State law or regulation that relates to discrimination in
The provision requiring conformity with the establishment clause (# 6) also requires
conformity with the free exercise clause, while the section barring discrimination
Signing the Community Opportunities, Accountability, and Training and Educational
Services Act of 1998).
41 Title V of the PHSA (42 U.S.C.A. 290aa et seq.)establishes the Substance Abuse and
Mental Health Services Administration (SAMHSA) and authorizes a number of federally-
administered grant, contract, and cooperative agreement programs related, inter alia, to the
prevention and treatment of substance abuse. Part B of Title XIX (42 U.S.C.A. 300w et
seq.), in turn, authorizes block grants to the states, inter alia, for the prevention and
treatment of substance abuse.
42 P.L. 106-310, Title XXXIII, § 3305 (Oct. 17, 2000); 42 U.S.C.A. 300x-65.
43 This Act was part of the omnibus “Consolidated Appropriations Act, 2001.” See P.L.
against beneficiaries (# 10) excludes the phrase “or refusal to participate in a
religious practice.” The modification of # 11 imposes the burden of referring a client
to an alternate provider on the provider whose religious character the client has
deemed objectionable rather than on a public entity. The charitable choice section
of this law also included special provisions allowing the personnel of a religious
provider to be exempted from state and local education and training requirements so
long as their education and training is “substantially equivalent.”
Thus, both charitable choice statutes are fully applicable to the discretionary
grant and the block grant programs authorized by Titles V and XIX of the Public
Health Services Act. But they are not wholly congruent. The following subsections
detail the legislative history of each provision:
Children’s Health Act . The Children’s Health Act emerged late in the 106th
Congress and pulled together a number of health related initiatives initially proffered
in other bills. As introduced in, and passed by, the House, the Children’s Health Act
(H.R. 4365) did not contain a charitable choice provision. But a broader substitute
amendment adopted on the Senate floor included a section adding a charitable choice
provision to the drug abuse prevention and treatment programs authorized by Titles
V and XIX of the Public Health Service Act. The House agreed to the Senate
amendment without a conference; and on October 17, 2000, President Clinton signed
the bill into law.44
There was no committee report on the bill in either the House or the Senate.
The House adopted H.R. 4365 (without a charitable choice provision) under a
suspension of the rules on May 9, 2000, by a vote of 419-2.45 In the Senate the bill
was initially referred to the Senate Committee on Health, Education, Labor, and
Pensions. But on September 22, 2000, that committee was discharged, and on the
floor Sen. Frist (R.-Tenn.) proposed a bipartisan substitute amendment containing a
charitable choice provision. The section of the bill that included the charitable choice
provision essentially incorporated a bill that the Senate had passed a year earlier, the
“Youth Drug and Mental Health Services Act” (S. 976). In its consideration of that46
bill, the Senate had a fair amount of debate on the charitable choice provision.
44 P.L. 106-310, Title XXXIII, § 3305 (Oct. 17, 2000); 42 U.S.C.A. 300x-65.
45 146 CONG. REC. H2698-2711 (daily ed. May 9, 2000).
46 The Senate had approved S. 976 on November 3, 1999. That measure would have re-
authorized and modified a number of substance abuse and mental health treatment programs
under titles V and XIX of the Public Health Services Act, both to give the states greater
flexibility in implementing the programs and to provide a sharper focus on the needs of
children and adolescents. Section 305 of the bill provided that the states could administer
their substance abuse programs under either title by means of grants, contracts, and
cooperative agreements with nongovernmental organizations and specified that religious
organizations were to be deemed eligible on the same basis as other organizations. The
charitable choice section stated that it was applicable to grants made under both Title V and
Title XIX without regard to whether they were state-administered. The charitable choice
section of the bill was identical to that eventually enacted in the Children’s Health Act.
As originally introduced, S. 976 had not contained a charitable choice section. Instead,
the section was part of an amendment in the nature of a substitute offered by Sen. Frist (R.-
Tn.) during the markup of the bill by the Senate Committee on Health, Education, Labor,
and Pensions on July 28, 1999. The charitable choice provision included in the substitute
differed from the one ultimately approved by the Senate in one respect: In addition to
allowing religious organizations to retain their Title VII privilege to discriminate on
religious grounds in their employment practices notwithstanding the receipt of public funds,
the Frist substitute also provided that such organizations could require employees to adhere
to their tenets and teachings as well as to rules forbidding the use of drugs or alcohol (#17
above). During the markup Sen. Reed (D.-RI) and Sen. Kennedy (D.-Ma.) proposed an
amendment to delete both of these employment discrimination provisions, but that
amendment was rejected on a rollcall vote of 8-10. The Committee then approved the Frist
substitute by a vote of 17-1.
The Committee report on S. 976 cited the apparent success of several faith-based
substance abuse programs and stated that “[b]ecause of the effectiveness of these
organizations, the Committee believes that greater participation of faith-based programs in
treating substance abuse problems is critical ....” The report said that “[r]eligious
organizations have often been unwilling to accept government funds to provide social
services for fear of having to compromise the[ir] religious character ...” and that government
ought to “exercise neutrality when inviting the participation of non-governmental
organizations to be services providers by considering all organizations – even religious ones
– on an equal basis ....” The charitable choice provision, the report stated, “clarifies the
constitutional framework for enabling cooperation between the government and religious
organizations,” assures religious organizations that “they will not have to compromise their
religious character upon receiving government funds,” maintains their “autonomy” over
employment decisions by permitting them to “make employment decisions based upon
religious reasons,” and protects the free exercise rights of beneficiaries. While “religious
organizations are expected to use government funds for the secular purpose of the
legislation,” the report stated, “nothing prohibits religious organizations from using monies
received from other sources ... for inherently religious activities, as long as participation is
voluntary.” See S.Rept. 106-196 (Oct. 19, 1999), at 32-33.
Seven Democrats who voted to report the bill filed “Additional Views” in the
committee report criticizing the charitable choice section. The provision, they stated, is
“Constitutionally suspect” and lacks “clear and strict safeguards ... to ensure that the
dividing line between church and state is not erased.” Moreover, they asserted, there is as
yet no documented evidence of the efficacy of faith-based substance abuse programs; and
recent research, they said, has emphasized that addiction is a chronic illness rather than a
moral failing. In addition, they stated, it provides “a new avenue for employment
discrimination,” and they decried the Committee’s rejection of the Reed-Kennedy
amendment to strike the employment discrimination provisions:
[Religious discrimination] may be acceptable when the organization is using its
own money, but when it is using federal funds, with explicit prohibitions against
proselytization, this kind of discrimination is objectionable.
The dissenting Senators said that “we believe religious organizations are helpful allies in the
battle against substance abuse” but that such organizations should be enlisted “without
undermining constitutional principles and civil rights laws.” The charitable choice section,
they concluded, “though laudable in concept, would have disturbing practical and
The Senate floor debate on Sen. Frist’s substitute generally focused on its
various health initiatives. But Senators Frist and Ashcroft (R.-Mo.) spoke in support
of the charitable choice provision while Sen. Reed (D.-R.I.) spoke in opposition.
Sen. Frist stated:
We know that no one approach works for everyone who needs and wants
substance abuse treatment and that faith-based programs have strong records of
successful rehabilitation. This provision will allow faith-based programs to47
continue to offer their assistance and expertise.
Sen. Ashcroft noted that he had authored the first charitable choice provision as partth
of the welfare reform legislation in the 104 Congress and asserted:
Under Charitable Choice ... churches and other faith-based providers are able to
compete on an equal footing with other non-governmental organizations in
providing services to disadvantaged Americans .... Charitable Choice calls our
nation to its highest and best in our effort to help those in need. It meets the tests
of compassion and common sense that count for so much in Missouri. When
people of faith extend compassionate help to those in need, the results can be
stunningly successful .... [T]he bipartisan support for Charitable Choice is
overwhelming in Congress. In addition, both Presidential candidates ... strongly
support the program. It is my hope that this broad national consensus will
continue to grow and that soon [we] will be able to enact a comprehensive
expansion of Charitable Choice to all federally-funded social services48
Sen. Reed (D.-R.I.) reiterated his criticism of the charitable choice provision:
... [It] allows all religious institutions, including pervasively religious
organizations, such as churches and other houses of worship, to use taxpayer
constitutional consequences.” Id. at 43-45.
When S. 976 came to the Senate floor, much of the brief debate centered on the
charitable choice provision, with Senators Frist and Ashcroft praising it and Senators
Kennedy, Dodd, and Reed criticizing it. The only amendment offered was one by Sen. Frist
to add an authorization for programs to prevent substance abuse in high risk families to the
bill. That amendment also included a modification of the employment discrimination
provisions in the committee-reported bill; it deleted the provision allowing religious
organizations to require employees to adhere to their tenets and teachings (part of # 17
above). The amendment still retained in the bill the Title VII exemption and the provision
regarding the use of drugs and alcohol by employees (the other part of # 17). The
amendment and the bill were approved by the Senate on a single voice vote on November
In the House the bill was referred to the Committee on Commerce, but no further
47 146 CONG. REC. S 9095 (daily ed. Sept. 22, 2000).
48 Id. at S 9109.
dollars to advance their religious mission .... [T]he inclusion of charitable choice
in this legislation is particularly disturbing since, unlike its application to the
intermittent services provided under Welfare Reform and CSBG, SAMHSA
funds are used to provide substance abuse treatment which is ongoing, involves
direct counseling of beneficiaries and is often clinical in nature. In the context
of these programs it would be difficult if not impossible to segregate religious
indoctrination from the social service .... The charitable choice provision creates
a disturbing new avenue for employment discrimination and proselytization in
programs funded by SAMHSA .... [P]artnerships with faith-based organizations
... should respect First Amendment protections and not allow taxpayer dollars to49
be used to proselytize or to support discrimination.
Nonetheless, the Senate passed the bill by unanimous consent.50
The Senate substitute had been developed in consultation with House members.
As a consequence, upon the bill’s return to the House, the House simply accepted the
Senate amendment without taking the measure to a House-Senate conference, 394-51
25. Most comments on the floor supported various aspects of the legislation; but
Representatives Scott (D.-Va.), Jackson-Lee (D.-Tex.), Edwards (D.-Tex.), Norton
(D.-D.C.), Waxman (D.-Cal.), and Pelosi (D.-Cal.) criticized the charitable choice
provision. Rep. Edwards expressed the most comprehensive critique:
First, what it says is Federal tax dollars can go directly to churches, synagogues,
and houses of worship. I believe that is clearly unconstitutional and for good
reason. Federal subsidies of our churches and houses of worship is something
we have not done for 200 years in our country. The second point: It mentions
language under the guise of not wanting to have discrimination against religious
organizations. That might be cute marketing but it is faulty logic .... The reason
... our Founding Fathers set up a distance between government and religion and
church and state was to protect religion, not to discriminate against it .... The
third point is it talks about stopping discrimination. Charitable choice language
in this bill actually subsidizes religious discrimination. Very clearly it says you
can take ... Federal tax dollars ... and put out a government paid-for sign that says
“No Catholics, no Jews, no Protestants need apply here for this federally
subsidized job.” That is wrong .... The fourth point is that charitable choice
language in the name of helping religion is actually going to bring government
auditing on our churches .... I am not sure our religious entities are helped in
America by having Uncle Sam come in and audit. This language is unnecessary,52
it is harmful, it is unconstitutional, and it should not be in this bill.
President Clinton signed the bill into law on October 17, 2000. But he
reiterated, with some modification, the constitutional concern about charitable choice
that he had expressed in signing the Community Services Block Grant Act (supra at
49 Id. at S. 9106-07.
50 Id. at S 9110 (daily ed. Sept. 22, 2000).
51 Id. at H 8264-65 (daily ed. Sept. 27, 2000).
52 Id. at H 8250.
This bill includes a provision making clear that religious organizations may
qualify for SAMHSA's substance abuse prevention and treatment grants on the
same basis as other nonprofit organizations. The Department of Justice advises,
however, that this provision would be unconstitutional to the extent that it were
construed to permit governmental funding of organizations that do not or cannot
separate their religious activities from their substance abuse treatment and
prevention activities that are supported by SAMHSA aid. Accordingly, I construe
the Act as forbidding the funding of such organizations and as permitting
Federal, State, and local governments involved in disbursing SAMHSA funds to
take into account the structure and operations of a religious organization in
determining whether such an organization is constitutionally and statutorily53
eligible to receive funding.
Community Renewal Tax Relief Act. This measure (H.R. 5662) was
introduced on December 14, 2000, and was immediately rolled into the omnibus
“Consolidated Appropriations Act, 2001." The latter Act incorporated by reference
the final four appropriations bills for fiscal 2001 as well as five authorization bills for
various initiatives, including H.R. 5662. Both the House and the Senate, without any
debate about the charitable choice provision, gave their assent to the conference
report on the Act on December 15, 2000; and President Clinton signed the measure
into law on December 21, 2000.54
As did the Children’s Health Act, the Community Renewal Tax Relief Actth
incorporated measures considered previously in the 106 Congress. More
particularly, some of its provisions, including its charitable choice provision, were
drawn from a bill passed previously by the House but not acted upon by the Senate
– the “Community Renewal and New Markets Act of 2000” (H.R. 4923). The
charitable choice provision of H.R. 4923 was identical to that contained in H.R. 5662
and had been the focus of an earlier House debate.55 The provisions of H.R. 4923,
53 Weekly Compilation of Presidential Documents (Oct. 23, 2000) (Statement on Signing the
Children's Health Act of 2000), p. 2504.
54 P.L. 106-554, Title I, § 144 (Dec. 21, 2000); 114 Stat. 2763, 2763A-622.
55 H.R. 4923 was the result of an agreement between Speaker Hastert and President Clinton
in November, 1999, to develop legislation to benefit distressed communities. The House
adopted the bill on July 25, 2000, without prior referral to committee by a vote of 394-27.
See 146 CONG. REC. H 6840 (daily ed. July 25, 2000).
H.R. 4923 provided a variety of tax incentives and other initiatives to promote the
renewal of distressed communities. The charitable choice provision amended Titles V and
XIX of the Public Health Service Act to allow religious organizations to receive grants and
contracts to administer substance abuse prevention and treatment programs on the same
basis as other private nonprofit organizations.
During the floor debate Rep. Scott (D.-Va.) complained that the bill was being
considered hastily and under a procedure (suspension of the rules) that precluded
amendments and that it should be defeated because of the charitable choice provision:
This bill ... ought to be opposed because it is unconstitutional, because it funds
pervasively sectarian organizations. It ought to be opposed because it insults
including the charitable choice provision, had, in turn, been included in H.R. 5542,
introduced on Oct. 25, 2000. That bill, along with several others, had, in turn, been
incorporated by reference in the conference report on an unrelated bill, H.R. 2614,56
which was adopted by the House57 but not acted upon by the Senate. Finally, the
provisions were included in H.R. 5662, which was incorporated by reference in the
omnibus appropriations bill passed at the end of the 106th Congress.
During the House debate on the conference report on H.R. 4577, Rep. Jackson
(D.-Ill.) made the only comment on charitable choice, as follows:
Although I support the New Markets initiative attached to this omnibus
conference report, I object to the charitable choice language because it allows for
federally funded employment discrimination. Despite the fact that charitable
choice provisions were included in legislation signed in October, I still believe58
civil rights and constitutional problems exist, and we should not overlook them.
In signing the measure into law, President Clinton reiterated the same
constitutional limitation on the implementation of the charitable choice provision
that he had voiced in signing the Children’s Health Act:
This bill includes a provision making clear that religious organizations may
qualify for substance abuse prevention and treatment grants from the Substance
Abuse and Mental Health Services Administration (SAMHSA) on the same basis
as other nonprofit organizations. The Department of Justice advises, however,
that this provision would be unconstitutional to the extent that it were construed
to permit governmental funding of organizations that do not or cannot separate
their religious activities from their substance abuse treatment and prevention
activities that are supported by SAMHSA aid. Accordingly, I construe the bill as
forbidding the funding of such organizations and as permitting Federal, State,
and local governments involved in disbursing SAMHSA funds to take into
account the structure and operations of a religious organization in determining
professional drug counselors by denigrating their professional credentials. And
the bill ought to be opposed because it brings back separate but equal in drug
programs and specifically provides for religious bigotry in hiring with taxpayers’
Id. at H 6821.
Rep. Souder (R.-Ind.) responded that the House had previously debated and adopted such
provisions five times, that the concept had been endorsed not only by President Clinton but
also by Governor Bush and Vice-President Gore, and that “at the minimum, faith-based
organizations are as effective as other programs in alcohol and drug abuse.” Id. at H 6828.
In the Senate the bill was placed directly on the calendar rather than being referred to
committee, but no further action occurred on this bill.
56 See H.Rept. 106-1004 (Oct. 26, 2000).
57 146 CONG. REC. H 11263-64 (daily ed. Oct. 26, 2000).
58 146 CONG. REC. H12493 (daily ed. Dec. 15, 2000).
whether such an organization is constitutionally and statutorily eligible to receive59
Other Charitable Choice Measures Adopted by the House,
Senate, or Committee in the 106th Congress
(1) Juvenile Justice (S. 254, H.R. 1501). In the 106th Congress both the
Senate and the House included identical charitable choice provisions in their versions
of the juvenile justice legislation. In the Senate the provision was included in S. 254,
the “Violent and Repeat Juvenile Offender Accountability and Rehabilitation Act of
1999,” as introduced by Sen. Hatch (R.-Ut.) on January 20, 1999,60 and remained in
the bill as passed by the Senate on May 20, 1999.61 The provision incorporated
by reference all aspects of the charitable choice section of the welfare reform
statute (## 1-13 above) and applied to Title II of the “Juvenile Justice and62
Delinquency Prevention Act of 1974" as it would have been amended by the bill.
As amended, Title II would have authorized a broad range of programs for the
prevention and treatment of juvenile delinquency and the improvement of the
juvenile justice system.
On June 17, 1999, the House approved a floor amendment adding a charitable
choice section to H.R. 1501, the “Child Safety and Protection Act.” More
specifically, Rep. Souder (R.-Ind.) on June 16 proposed adding a charitable choice
provision to the bill’s version of Title II of the “Juvenile Justice and Delinquency
Prevention Act of 1974,”63 which, like the Senate bill, authorized a variety of
programs for the prevention and treatment of juvenile delinquency and the
improvement of the juvenile justice system. Like the Senate bill, his proposal did not
spell out the elements of charitable choice but simply incorporated by reference all
of the elements of the charitable choice section in the welfare reform bill (## 1-
Rather than substituting the text of H.R. 1501 for S. 254 and asking for a
conference, however, the House subsequently returned S. 254 to the Senate on the
grounds it contained a revenue provision that did not originate in the House, in
violation of Art. I, § 7, of the Constitution.66 Consequently, the Senate substituted
the text of S. 254 for the House-passed version of H.R. 1501 and requested a
59 White House Office of the Press Secretary, “Statement of the President Upon Signing
H.R. 4577, the Consolidated Appropriations Act, FY 2001" (December 22, 2000), at 8.
60 See S. 254, § 292, 106th Cong., 1st Sess. (1999).
61 145 CONG.REC. S 5725 (daily ed. May 20, 1999).
62 42 U.S.C.A. 5611 et seq.
64 145 CONG. REC. H 4461 (daily ed. June 16, 1999).
65 Id. at H 4461-4468 (daily ed. June 16, 1999) and H 4487 (daily ed. June 17, 1999).
66 Id. at H5680 (daily ed. July 15, 1999).
conference.67 Largely because of ongoing controversy over the gun control
provisions in the Senate version, H.R. 1501 never emerged from the House-Senate
(2) Fathers Count Act (H.R. 3073). On November 10, 1999, the House
rejected two amendments to modify a charitable choice provision in Title I of H.R.
3073, the “Fathers Count Act,” and then adopted the bill. Title I of H.R. 3073 would
have authorized the federal government to make grants to public and private entities
for projects to promote marriage, promote successful parenting, and help fathers and
their families move from welfare to work. The charitable choice provision would
have made the charitable choice section of the welfare reform act applicable in
its entirety (## 1-13 above) to such grants. The provision had been included in the
bill as introduced by Rep. Johnson (R.-Ct.) on October 14, as reported by the House68
Ways and Means Committee on October 28 , and as modified in a substitute floor
amendment by Rep. Johnson on November 4.69
During the floor debate two amendments were proposed regarding charitable
choice, and most of the debate on the bill concerned that issue. Rep. Edwards (D.-
Tex.) proposed adding language to the charitable choice section providing as follows:
Notwithstanding any other provision of law, funds shall not be provided under
this section to any faith-based institution that is pervasively sectarian.
His amendment was defeated, 184-238.70 Rep. Scott (D.-Va.), in turn, offered a
motion to recommit the bill with instructions to remove the provision in the
charitable choice section of the welfare reform bill allowing religious organizations
receiving funds under the designated programs to discriminate on religious grounds
67 Id. at S 9459 (daily ed. July 28, 1999).
68 H.Rept. 106-424 (Part 1) (Oct. 28, 1999). The committee explained its inclusion of the
charitable choice provision as follows:
The Committee believes that religious organizations have an important role to
play in the nation’s social policy. We oppose any action that would provide an
advantage in funding to faith-based organizations, but it seems unwise to
eliminate them from the competition between entities that can design and
conduct the best projects to promote marriage, promote better parenting, and help
fathers increase their earnings. In fact, promoting marriage and better parenting,
as well as solving some of the barriers to employment such as addictions, are
issues that would seem to be reasonable for churches and other faith-based
organizations to address. The goal of the Committee in adopting this provision
is simply to level the playing field so that faith-based entities can have their
applications considered on the same basis as secular entities.
Id. at 33.
69 For the text of her amendment, see 145 CONG. REC. H 11557-63 (daily ed. Nov. 4, 1999)
and H 11880-86 (daily ed. Nov. 10, 1999).
70 Id. at H 11899 (daily ed. Nov. 10, 1999).
in their employment practices. That motion was also rejected, 176-246.71 The House
then adopted the bill, 328-93.72
In the Senate H.R. 3073 was referred to the Finance Committee but no further
action occurred on that bill.
(3) Child Support Distribution Act of 2000 (H.R. 4678). The provisions
of H.R. 3073, including the charitable choice provision, reappeared in H.R. 4678, the
“Child Support Distribution Act of 2000," which was passed by the House on
September 7, 2000. H.R. 4678 contained a variety of measures to enhance the
collection and distribution of child support and, because of Senate inaction on H.R.
3073, the charitable choice provision included in the fatherhood grant section
of H.R. 4678 simply incorporated by reference the charitable choice section of
the welfare reform act (## 1-13 above).
The fatherhood grant program and its charitable choice provision were included
in H.R. 4678 as introduced by Rep. Johnson (R.-Conn.) on June 15, 2000; as reported
by the House Committee on Ways and Means on July 26, 2000; and as adopted by
the House on September 7, 2000. In reporting the measure, the Ways and Means
Committee explained the rationale for charitable choice by replicating the pertinent73
section of its report on the “Fathers Count Act.”
The rule adopted to govern debate on the bill slightly modified the child support
provisions of H.R. 4678, made in order a three-part amendment by Rep. Scott (D.-74
Va.) to the charitable choice section, and permitted one motion to recommit. The
Scott amendment proposed to add ## 14 and 15 above, barring entities from
subjecting participants in funded programs “to sectarian worship, instruction, or
proselytization” and providing that receipt of financial assistance under the
fatherhood grant program would constitute receipt of federal financial assistance for
purposes of federal, state, and local civil rights laws. His amendment also proposed
to delete language in one provision of charitable choice that seemed to create a
loophole in its ban on religious discrimination against beneficiaries in a funded
program. That provision barred religious discrimination against beneficiaries “except
as otherwise permitted in law.”
During floor debate Rep. Scott contended that the bill only barred federal funds
from being used to proselytize participants in the fatherhood programs but allowed
“privately paid employees or volunteers [to] use the Federal-funded program to
71 Id. at H 11900-01.
72 Id. at H 11902.
73 S.Rept. 106-793, 106th Cong., 2d Sess. (July 26, 2000), at 45. For the text of the
duplicated portion of the Committee’s report on the “Fathers Count Act,” see p. 17, n. 62.
74 H.Res. 566, adopted by voice vote on September 7. See 146 CONG.REC. H 7294-7296
(daily ed. Sept. 7, 2000). The modifications to the bill and the amendment made in order
by the rule were explained in the report of the Rules Committee. See H.Rept. 106-798 (July
promote their sectarian agenda.” Participants in effect, he said, would become a
“captive audience.” He further contended that his amendment would close the
apparent loophole allowing religious discrimination against participants and would
also “make it clear that in cases of insidious discrimination, the Department of
Justice could use enforcement procedures under title VI of the Civil Rights Act to
enforce civil rights of beneficiaries and employees.”75 Opponents argued, on the
other hand, that the Scott amendment was broader than the similar one added to the
Even Start bill because it precluded proselytizing “in” the funded program and not
just “during” the program. They also contended that the civil rights element of the
amendment was “unnecessary to enforce title VI” and that the amendment would
“frighten churches away from being willing to participate in this program.”76 On a
roll-call vote, Rep. Scott’s amendment was rejected, 163-257.77
Rep. Scott then offered a motion to recommit with instructions to delete the
section of the charitable choice provision allowing participating religious
organizations to discriminate in their employment practices on religious grounds. He
and others contended that “federally funded religious bigotry is wrong” and that “it
is wrong to take the American people’s tax dollars and put out a sign that says no
Jews, no Protestants, or no Catholics, no Muslims need apply for this federally
funded job.” Rep. Souder (R.-Ind.) and others argued in opposition that the motion
would “say that churches, if they are going to participate in any Federal program, can
no longer be churches” and that its adoption would eliminate the participation of
churches in the program, because they would refuse to give up their existing Title VII
exemption. The motion to recommit was rejected, 175-249.78
The bill was then adopted by a vote of 405-18.79 In the Senate it was referred
to the Finance Committee, but no further action occurred on the measure.
(4) American Homeownership and Economic Opportunity Act (H.R.
On April 6, 2000, the House approved a charitable choice amendment proposed by
Rep. Souder (R.-Ind.) to H.R. 1776, the “American Homeownership and Economic
Opportunity Act of 2000,” by a vote of 299-12480; but the provisions of that bill were
eventually enacted without the charitable choice provision. The amendment
incorporated the first nine elements detailed above plus # 12, and also included
a new requirement that the programs be implemented in a manner consistent
with the free exercise clause of the First Amendment. The latter provision
resulted from a colloquy on the House floor between Rep. Frank (D.-Ma.) and Rep.
75 146 CONG.REC. H 7317 (daily ed. Sept. 7, 2000).
76 Id. at H 7317-18.
77 Id. at H 7318-19.
78 Id. at H 7320-21.
79 Id. at H 7321.
80 146 CONG. REC. H 1940 (daily ed. April 6, 2000).
Souder and was adopted by unanimous consent.81 The charitable choice amendment
applied to all housing programs administered by the Department of Housing and
Urban Development under which the federal or state governments make funds
available to nongovernmental organizations.
H.R. 1776 did not include a charitable choice provision either as introduced or
as reported by the House Committee on Banking and Financial Services.82 Upon
offering the amendment during floor debate on the bill, Rep. Souder summarized it
Charitable choice makes it clear that religious organizations receiving Federal
funds to provide services may not discriminate against those who would receive
those services. It makes it clear that they will not be forced to change their
identity or the characteristics which make them unique and effective. These
protections include their religious character, independence, and employment
practices. The goal here is to allow faith-based organizations to compete without
handicapping them by eliminating the characteristics which make them effective83
in improving lives and restoring communities.
As noted, a colloquy with Rep. Frank about protecting participants in programs
operated by faith-based organizations resulted in a unanimous consent agreement to
add language making clear that the programs have to be implemented in a manner
consistent not only with the establishment clause but also the free exercise clause of
the First Amendment. Further debate focused on the desirability and constitutionality
of providing public funds to faith-based organizations which are pervasively sectarian
and which discriminate on religious grounds in their employment practices, but the
rule under which the bill was debated precluded any further amendment to the
charitable choice provision.84 Rep. Souder’s amendment was adopted by a vote of
In the Senate H.R. 1776 was referred to the Committee on Banking, Housing,
and Urban Affairs but received no further action.86 Late in the second session,
81 Id. at H 1922-23. As proposed and approved, the amendment added the words “and the
Free Exercise Clause” after “Establishment Clause” in the provision requiring programs to
be implemented “in a manner consistent with the Establishment Clause of the first
amendment to the Constitution.” For unknown reasons the engrossed version of the bill
substituted the word “of” for “and,” so that the phrase reads “implemented in a manner
consistent with the Establishment Clause of the Free Exercise Clause of the first amendment
to the Constitution.”
82 See H.Rept. 106-553 (March 29, 2000). A charitable choice provision was also not part
of H.R. 710 as introduced, which was incorporated into H.R. 1776 by the Committee.
83 146 CONG. REC. H 1920 (daily ed. April 6, 2000).
84 Id. at H 1920 - H 1935. For the text of the rule governing debate on the bill, see H. Res.
85 Id. at H 1940-41.
86 On June 20, 2000, the Subcommittee on Housing and Transportation held a hearing on the
general subject of promoting homeownership. See Hearing Before the Subcommittee on
however, many of the provisions of H.R. 1776, along with several other housing and
banking bills, were incorporated into a new bill with the same title, H.R. 5640. That
bill was quickly approved by both the House and the Senate87 and sent to the
President on December 15, 2000. H.R. 5640 did not include the charitable choice
provision that had been part of H.R. 1776, and no comment was made about that
deletion in the brief floor discussions of H.R. 5640.
(5) Even Start Family Literacy Programs (H.R. 3222). On September
12, 2000, the House passed under suspension of the rules an education bill that
included a charitable choice provision,88 but the provisions of that bill were
eventually enacted without that provision. H.R. 3222, the “Literacy Involves
Families Together Act,” would, inter alia, have re-authorized and amended the
“Even Start” program under the Elementary and Secondary Education Act, which
provides grants to the states to conduct family literacy projects.89 The program
allows the states to carry out these projects through partnerships between local
education agencies and institutions of higher education, nonprofit community-based
organizations, and other public agencies. The charitable choice section of H.R. 3222
provided that religious organizations could participate while retaining their religious
character. The section replicated ## 1-8, 10, 12, 14, and 15 of the provisions
noted at the beginning of this report, specified that no funding could be
provided in the form of vouchers, provided that religious organizations cannot
serve as fiscal agents for partnerships receiving a subgrant under the program,
and stated that # 15 should not be construed to affect any other program
conducted by an eligible entity.
As originally introduced on November 4, 1999, H.R. 3222 did not include a
charitable choice section; nor was the section included in the amendment in the
nature of a substitute offered by Rep. Goodling (R.-Pa.) at the beginning of the
committee markup on February 16, 2000. Instead, it resulted from an amendment to
the substitute offered in committee by Rep. Souder (R.-In.). As proposed, the
amendment replicated many of the charitable choice provisions that had been in the
welfare reform act, including all of the elements in ## 1-10 detailed above as well as
# 12. But the committee approved several modifications of Rep. Souder’s
amendment. It accepted by voice votes an amendment by Rep. Kildee (D.-Mi.)
making clear that “no services under this part may be provided by voucher or
certificate”; one by Rep. Scott (D.-Va.) reversing # 9 and providing that no eligible
entity can “subject a participant [in an Even Start program] to sectarian worship or
instruction or proselytization” (# 15 above); and another one by Rep. Scott specifying
that the receipt of funds under the program constitutes receipt of federal financial
assistance (# 14 above). By a vote of 15-23, the committee rejected another
amendment offered by Rep. Scott to delete the provision permitting religious
Housing and Transportation of the Senate Banking Committee on Proposals to Promote
Affordable Housing (June 20, 2000) (unprinted).
87 146 CONG. REC. H 11996 (daily ed. Dec. 5, 2000) and S 11681 (daily ed. Dec. 7, 2000).
88 146 CONG.REC. H7470 (daily ed. Sept. 12, 2000).
89 20 U.S.C.A. 6361 et seq.
organizations receiving funds under the program to discriminate on religious grounds
in their employment practices. Thus, as reported by the committee, the charitable
choice section of H.R. 3222 contained ## 1-8, 10, 12, 14, and 15 of the provisions
noted above and specified as well that no funding can be provided in the form
of vouchers and that religious organizations cannot serve as fiscal agents for
partnerships receiving a subgrant under the program.
The committee report on the bill90 noted that religious organizations are already
providing services under the Even Start program but stated that “the Committee
thought it was important to amend current definitions to clarify that such providers
may not be barred from providing services in the future, because of their religious
nature.” “Under the amendment,” the committee stated, “the government may not
discriminate against religious organizations that seek to participate in the local
partnership and may not require those religious organizations to `secularize’ or
eliminate their religious character in order to participate.” The report noted the other
charitable choice provisions that had previously been approved by the House as
indicating Congressional support for the concept and quoted both President Clinton
and Vice-President Gore as favoring greater involvement by faith-based
organizations. Finally, the committee observed that, contrary to warnings that
adoption of charitable choice would lead to “endless litigation,” no federal court91
decisions on charitable choice had as yet been reported.
Rep. Scott filed “Additional Views” to detail his “grave concerns about the
constitutional and policy implications of the `charitable choice’ provision ....” The
committee’s rejection of his amendment to bar religious organizations participating
in the Even Start program from discriminating on religious grounds in their
employment practices meant, he said, that “religious bigotry may take place with
federal funds ....” The Title VII exemption, he asserted, “was intended to apply to
the use of private funds for the religious organization and it was never expected to
be applied to the use of federal funds.” The exemption also raised questions, he
stated, with respect to its interplay with the precepts of religions that may mandate
or ordain observance of beliefs based on race, gender, sexual orientation, marital
status, or behavior; and it was to ensure that federal nondiscrimination statutes would
continue to apply in such situations, he explained, that he proposed an amendment
to make clear that any receipt of Even Start funds would constitute receipt of federal
financial assistance. The Committee’s acceptance of his second amendment barring
proselytizing in Even Start programs even with a religious organization’s own funds,
he said, “increases the possibility [that the program can] be implemented consistent
with the Constitution.” Finally, he contended, the purpose of charitable choice to
allow government funding of pervasively sectarian organizations conflicts with the
requirements of the Constitution.
Similar contentions were voiced in the brief floor debate on the measure. Rep.
Scott expressed his “reluctant” opposition to the bill because it “allows the
government to give taxpayer money to religious institutions and then allows those
religious institutions to refuse to hire certain taxpayers for taxpayer-funded positions
90 H.Rept. 106-503, 106th Cong., 2d Sess. (Feb. 29, 2000).
91 Id. at 15-17.
because they are not of the right religion.”92 Rep. Edwards (D.-Tex.) agreed with that
view and also expressed concern that the measure would allow public funding of
pervasively sectarian institutions and open the door to federal audits of churches and
other houses of worship.93 Rep. Goodling (R.-Pa.) asserted that religious
organizations “who should really be participating when one is dealing with families
and are trying to improve family life” would not participate if they had to give up
their Title VII exemption to do so.94 Mr. Souder (R.-Ind.) voiced consternation that
anyone would object to the participation of faith-based organizations.95
As noted, the bill was brought up under suspension of the rules, a procedure
which allowed no floor amendments. But two modifications had been made in the
charitable choice section of the bill after it was reported from committee. The words
“Except as otherwise provided in law” had been struck from the provision barring
religious discrimination against beneficiaries, and Rep. Scott’s amendment barring
eligible entities from subjecting program participants to sectarian worship,
instruction, or proselytizing had been supplemented by the following:
(2) CONSTRUCTION.–Paragraph (1) shall not be construed to affect any
program that is not an Even Start program (regardless of whether it is carried out
before, after, or at the same time as an Even Start program).
After brief debate, H.R. 3222 was adopted by voice vote.
In the Senate the bill was referred to the Committee on Health, Education,
Labor, and Pensions; but no further action occurred on that bill. Instead, most of the
provisions of H.R. 3222 were incorporated into H.R. 5666 which was, in turn,
incorporated by reference in the omnibus appropriations bill (H.R. 4577) enacted at
the end of the second session.96 The charitable choice provision of H.R. 3222,
however, was not included in that version and was not enacted.
(6) Education OPTIONS Act (H.R. 4141). On May 4, 2000, the House
Committee on Education and the Workforce reported another bill containing a
similar charitable choice provision – H.R. 4141, the “Education Opportunities to
Protect and Invest in Our Nation’s Children (Education OPTIONS) Act.” Title II –
labeled the “Safe and Drug-Free Schools and Communities Act” -- authorized grants
for drugs and violence prevention and education programs and specified that states
could carry out the title, if they chose, by means of grants to, and contracts with,
“charitable, religious, or private organizations.” As introduced on March 30, 2000,
by Rep. Goodling (R.-Pa.), the charitable choice provision of H.R. 4141 included the
elements specified above in ## 1-10 and #12. During markup the Committee
92 146 CONG.REC. H 7464 (daily ed. Sept. 12, 2000) (statement by Rep. Scott).
93 Id. at H 7465.
94 Id. at H 7466.
95 Id. at H 7468.
96 P.L. 106-554, Title XVI (Dec. 21, 2000). For the text of the “Literacy Involves Families
Together Act,” see the text of the conference report on H.R. 4577 at 146 CONG. REC. H
accepted by voice vote an amendment proposed by Rep. Scott (D.-Va.) that had also
been accepted in the markup of H.R. 3222. The amendment reversed # 9 and barred
program sponsors from “subject[ing] a participant ... to sectarian worship,
instruction, or proselytization”; it also provided that “[f]or purposes of any Federal,
State, or local law, receipt of financial assistance under this title shall constitute
receipt of Federal financial assistance” (## 14 and 15 above). The Committee
rejected two other amendments proposed by Rep. Scott, one to strike the words
“except as otherwise provided by law” from the provision barring religious
discrimination against clients, by a vote of 21-25, the other to override the Title VII
exemption for religious discrimination with respect to positions funded under the
Act, this one by a vote of 18-28. Thus, as reported, H.R 4141 included the
charitable choice elements listed in ## 1-8, 10, 12, 14, and 15 above.
The committee’s report on H.R. 4141 retraced many of its comments on H.R.
3232, the Even Start bill. The report noted that religious organizations can currently
participate in federally funded drug and violence prevention programs but stated that
it “thought it was important to ... clarify that such providers may not be barred from
providing services in the future because of their religious nature.”97 “[U]nder the
provision,” the report said, “the government may not discriminate against religious
organizations that seek to participate and may not require those religious
organizations to `secularize’ or eliminate their religious character in order to
participate.”98 The report noted that the House had supported charitable choice
provisions on a number of prior occasions, and that the concept had been supported
by both President Clinton and Vice-President Gore.
Rep. Scott filed dissenting views reiterating many of his objections and
expressing “grave concern about the constitutional and policy implications of
charitable choice.”99 The provision, he stated, would allow “religious bigotry ... [to]
take place with federal funds,” because it specifies that religious organizations can
retain their exemption from Title VII’s prohibition of religious discrimination in
employment even when they receive public funds. Thus, he asserted, “a religious
organization using federal funds under Charitable Choice could fire or refuse to hire
a perfectly qualified employee because of that person’s religion.” Moreover, he
argued, the purpose of charitable choice “is to provide government funding to
`pervasively sectarian’ organizations,” notwithstanding the likelihood that public
funding of such entities is unconstitutional. Quoting Rev. Wanda Henry of the
American Baptist Churches, USA, Rep. Scott suggested that charitable choice may
also do harm to the recipient organizations as their missions become intertwined with
the quest for public money. He quoted Rev. Henry as saying not only that religious
organizations will become subject to government audit and regulation but also that
“the prophetic voice of the church will be silenced or threatened with silence due to
their inability to criticize the main source of their funding for meeting social needs.”
Public funding may also heighten religious animosities, Rep. Scott stated, as citizens
97 H.Rept. 106-608, 106th Cong., 2d Sess. (May 4, 2000), at 91.
98 Id. at 93.
99 Id. at 406.
come to realize their tax dollars are being used for the support of religions different
from their own.
H.R. 4141 was not brought up for consideration by the full House.
Other Charitable Choice Measures That Were Introduced in
the 106th Congress
A number of other charitable choice proposals were made in the 106th Congress.
Several measures were similar to the charitable choice provisions of S. 976, H.R.
and would have allowed religious organizations to receive funding for substance
abuse prevention and treatment programs under the rubric of charitable choice (S.
289, S. 463, S. 899, and H.R. 815). Two bills would have attached charitable choice
to programs providing alternatives to abortion (H.R. 2901, S. 1605). Two bills
would have done so with respect to programs promoting adoption counseling (H.R.
2511, S. 1382). Finally, four bills would have made charitable choice applicable to
most federally funded social service programs (S. 997, S. 1113, S. 2779, and H.R.
One of the issues that has been raised about the charitable choice measures is
whether it is possible to implement all of their provisions or whether some
necessarily have to be ignored, i.e., whether the various provisions of charitable
choice are internally contradictory. But that issue of the administrative feasibility of
implementing charitable choice is, in fact, a question of its constitutionality. On the
one hand, all of the charitable choice provisions enacted or approved to date require
that they be implemented “consistent with the Establishment Clause of the United
States Constitution” and that federal funds received in the form of grants or contracts
not be used for purposes of religious worship, instruction, or proselytization. But on
the other hand, they also all allow the religious organizations that receive grants or
administer contracts under the pertinent programs to hire only adherents of their own
faith, to display religious symbols and scripture on the premises where services are
provided, to practice and express their religious beliefs “independent” of any
government restrictions, and (with two exceptions) to invite the participants in their
publicly funded programs to take part in religious activities funded with the
organizations’ own funds. The provisions also allow federal funds received
indirectly in the form of vouchers (if the underlying program allows for vouchers) to
be used for sectarian worship, instruction, and proselytization. Recipient
organizations also need not, although they may, be incorporated separately from a
sponsoring religious entity. Administratively, the question is whether the programs
can be implemented in full compliance with all of these provisions. But more
fundamentally, the question is whether it is “consistent with the Establishment
Clause” for the government to fund religious organizations with these
charact eri s t i cs.100
100 The question of the constitutionality of charitable choice under the establishment clause,
This question, in turn, has at least two dimensions. The charitable choice
measures govern public aid that is given directly to religious organizations by means
of grants or contracts and, at least in the case of the welfare reform statute, public aid
given indirectly in the form of vouchers that can be redeemed with religious (as well
as nonreligious) organizations. The constitutional strictures that apply to these two
forms of aid, however, differ; and as a consequence, the form in which the public aid
is provided to religious organizations has implications for the compatibility of the
“consistent with the Establishment Clause” phrase with the other provisions of
It should also be noted that recent Supreme Court decisions appear to be moving
away from the “no direct aid” principle that has characterized much of its
jurisprudence. Four Justices have expressed the view that the establishment clause
should be interpreted and applied in accordance with a principle of formal neutrality,
i.e., that direct public aid programs benefitting religious institutions pass
constitutional muster so long as the aid is distributed evenhandedly to religious and
nonreligious institutions alike according to secular criteria, regardless of whether the
aid is subsequently diverted to religious use by the recipient organizations. This is
not the majority view on the Court as yet, and the other Justices still require that
direct public aid be limited to secular use by the recipient institutions. But a majority
of the Justices have abandoned the presumption that some religious institutions are
so pervasively sectarian that direct public aid is inevitably unconstitutional because
of the impossibility of limiting it to secular use in such institutions. Thus, the
Court’s recent decisions appear to be opening the door to a greater degree of direct
public aid than formerly, although those decisions have left the full scope of what the
establishment clause requires indeterminate.
The following subsections detail the constitutional framework that appears to
govern these two types of aid:
(1) Direct aid. As noted, recent decisions by the Supreme Court appear to
have loosened somewhat the constitutional strictures placed on direct public aid
programs benefitting religious institutions, albeit to an indeterminate degree. Under101
the tripartite test first articulated fully in Lemon v. Kurtzman, the Court has long
held that to pass muster under the establishment clause, a public aid program “must
have a secular legislative purpose ..., a principal or primary effect ... that neither
advances nor inhibits religion ..., [and] not foster `an excessive government102
entanglement with religion.’” These requirements continue to apply, but the
primary effect and excessive entanglement prongs of this tripartite test have now
it should be noted, does not depend on the presence of this phrase in the statutes enacted or
the bills approved.
101 403 U.S. 602, 612-13 (1971).
102 Id. at 612-13, quoting Walz v. Tax Commission of New York, 397 U.S. 664, 668 (1970).
The secular purpose prong of the Lemon test has rarely posed an obstacle to
public aid programs directly benefitting sectarian entities. But the Court’s use of the
primary effect and entanglement prongs have posed a substantial barrier.
In applying the primary effect prong the Court has made clear that the
establishment clause “absolutely prohibit[s] government-financed or government-
sponsored indoctrination into the beliefs of a particular religious faith.”103
“[G]overnment inculcation of religious beliefs,” the Court has stated, “has the
impermissible effect of advancing religion.”104 To guard against that effect, public
assistance which flows directly to religious institutions in the form of grants or
contracts has been required to be limited to aid that is “secular, neutral, and
nonideological....”105 That is, under the primary effect prong of the Lemon test,
government has been able to provide direct support to secular programs and services
sponsored or provided by religious entities but it has been barred from directly
subsidizing such organizations’ religious activities or proselytizing. Direct
assistance, the Court has held, must be limited to secular use.106
Thus, under this interpretation of the establishment clause, religious
organizations have not automatically been disqualified from participating as grantees
or contractors in publicly funded programs. But in order to meet the secular use
requirement, such organizations have had either to divest themselves of their
religious character and to become predominantly secular in nature or, at the least, to
be able to separate their secular functions and activities from their religious functions
and activities. To the extent they have done so, it has been deemed constitutionally
permissible for government to provide direct funding to their secular functions.
But under this interpretation of the establishment clause it has also been deemed
constitutionally impermissible for religious organizations that are pervasively
sectarian to participate in direct public aid programs. The Court has not laid down
a hard and fast definition of what makes an organization pervasively sectarian.107 But
103 Grand Rapids School District v. Ball, 473 U.S. 373, 385 (1985).
104 Agostini v. Felton, 521 U.S. 203, 223 (1997).
105 Committee for Public Education v. Nyquist, 413 U.S. 756, 780 (1973).
106 Committee for Public Education v. Nyquist, supra; Lemon v. Kurtzman, supra; Bowen
v. Kendrick, supra.
107 The Court has looked at such factors as the proximity of the organization in question to
a sponsoring church; the presence of religious symbols and paintings on the premises;
formal church or denominational control over the organization; whether a religious criterion
is applied in the hiring of employees or in the selection of trustees or, in the case of a school,
to the admission of students; statements in the organization’s charter or other publications
that its purpose is the propagation and promotion of religious faith; whether the organization
engages in religious services or other religious activities; its devotion, in the case of schools,
to academic freedom; etc. See, e.g., Bradfield v. Roberts, 175 U.S. 291 (1899); Lemon v.
Kurtzman, supra; Tilton v. Richardson, 403 U.S. 672 (1971); Committee for Public
Education v. Nyquist, supra; Meek v. Pittenger, 421 U.S. 349 (1975); Roemer v. Maryland
Board of Public Works, 426 U.S. 736 (1976); and Bowen v. Kendrick, 487 U.S. 589 (1988).
But the Court has also made clear that “it is not enough to show that the recipient of a ...
it has described them generally as organizations permeated by a religious purpose and
character and as entities whose secular functions and religious functions are
“inextricably intertwined.” In such religion-dominated institutions it is simply
impossible, the Court has stated, to limit public aid to secular use. As a consequence,
it has, until recently, held that direct public subsidies inevitably have a primary effect
of advancing religion.108
Thus, in the Court’s past decisions, the secular use limitation on direct public
aid under the establishment clause has been deemed to have two dimensions. Direct
public aid cannot be used for religious purposes, nor can it flow to institutions that
are pervasively sectarian. As the Court summarized in Hunt v. McNair109:
Aid normally may be thought to have a primary effect of advancing religion
when it flows to an institution in which religion is so pervasive that a substantial
portion of its functions are subsumed in the religious mission or when it funds
a specifically religious activity in an otherwise substantially secular setting.
The entanglement prong of the Lemon test has also, until recently, had fatal110
consequences for direct aid to pervasively sectarian institutions. In institutions that
are not pervasively sectarian, the Court has been willing to presume that a secular use111
limitation on direct aid can be honored without intrusive government monitoring.
But in institutions that are pervasively sectarian, the Court has, until recently,
perceived a substantial risk that direct aid which is not limited by its nature to secular
use may be used for religious purposes. Because of that risk it has stated that “[a]
comprehensive, discriminating, and continuing state surveillance will inevitably be
required to ensure that the restrictions [to secular use] are obeyed and the First
Amendment otherwise respected.” But “these prophylactic contacts,” it has held,
“will involve excessive and enduring entanglement between state and church.”112
grant is affiliated with a religious institution or that it is `religiously inspired.’” Bowen v.
Kendrick, supra, at 621. Indeed, none of these factors, by itself, has been held sufficient to
make an institution pervasively sectarian and therefore ineligible for direct aid. Such a
finding has always rested on a combination of factors. For lower federal court discussions
of the criteria bearing on whether an institution is pervasively sectarian or not, see
Minnesota Federation of Teachers v. Nelson, 740 F.Supp. 694 (D. Minn. 1990) andth
Columbian Union College v. Clark, 159 F.3d 151 (4 Cir. 1998), cert. denied, 119 S.Ct.
108 Committee for Public Education v. Nyquist, supra; Meek v. Pittenger, 421 U.S. 349
(1975); Wolman v. Walter, 433 U.S. 229 (1977); School District of the City of Grand
Rapids v. Ball, 473 U.S. 373 (1985).
109 413 U.S. 734, 743 (1973).
110 See Lemon v. Kurtzman, supra; Meek v. Pittenger, supra; and Aguilar v. Felton, 473 U.S.
111 Tilton v. Richardson, 403 U.S. 672 (1971);Roemer v. Maryland Board of Public Works,
112 Lemon v. Kurtzman, supra, at 619.
As a practical matter, these interpretations of the establishment clause have had
their most severe effects on programs providing direct aid to sectarian elementary and
secondary schools, because the Court has presumed that such schools are pervasively
sectarian. The Court has presumed to the contrary with respect to sectarian colleges,
hospitals, and other social welfare organizations, although it has held open the
possibility that some of these agencies might be pervasively sectarian.113
In its most recent decisions, however, the Court appears to have abandoned the
presumption that some religious institutions, such as sectarian elementary and
secondary schools, are so pervasively sectarian that they are constitutionally
ineligible to participate in direct public aid programs. Three years ago in Agostini v.
Felton114 the Court for the first time overturned a prior establishment clause decision
and held it to be constitutional for public school teachers to provide remedial and
enrichment services on the premises of private sectarian schools to children attending
those schools who were eligible for such services under Title I of the Elementary and
Secondary Education Act. In City of Grand Rapids v. Ball115 and Aguilar v. Felton116
in the mid-1980s the Court had held such on-premises instruction to violate the
establishment clause in several different ways. First, it said, the pervasive
sectarianism that characterized the schools created a substantial risk that the teachers,
even though they were employed by the public school system, would “subtly (or
overtly) conform their instruction to the environment in which they teach ....”117
Second, it held, the on-premises instruction by public employees created an
appearance of a “symbolic union” between church and state. Third, it stated, the aid
provided substantial support to the educational function of the sectarian schools and,
thus, to its religious mission. Finally, in Aguilar it held that the on-site monitoring
necessary to ensure that the services the teachers provided remained wholly secular
in nature would create an excessive entanglement between church and state.
In Agostini the Court overturned all of these conclusions. It abandoned the
presumption that a public school employee will inevitably be pressured by the
pervasively sectarian surroundings of the private schools to inculcate religion. It
rejected the symbolic union contention as “neither sensible nor sound.” It said the
services did not supplant the schools’ regular curricula but were supplemental; and,
in any event, they were provided to the students and not directly to the schools.
Finally, it held that because the teachers were no longer presumed to be likely to
inculcate religion, no excessively entangling monitoring of their services was
necessary. The Court concluded:
114 521 U.S. 203 (1997).
115 473 U.S. 373 (1985).
116 473 U.S. 402 (1985).
117 City of Grand Rapids v. Ball, supra, at 388.
Accordingly, contrary to our conclusion in Aguilar, placing full-time employees
on parochial school campuses does not as a matter of law have the impermissible118
effect of advancing religion through indoctrination.
Most recently, the Court in Mitchell v. Helms119 upheld as constitutional an
ESEA program which subsidizes the acquisition and use of educational materials and
equipment by public and private schools. In the process the Court overturned parts
of two prior decisions which had held similar aid programs to be unconstitutional and
which had been premised on the view that direct aid to pervasively sectarian
institutions is constitutionally suspect.120 More particularly, the Court found the
provision of such items as computer hardware and software, library books, movie
projectors, television sets, tape recorders, VCRs, laboratory equipment, maps, and
cassette recordings to private sectarian elementary and secondary schools not to
violate the establishment clause.
The Justices could agree on no majority opinion in Helms but instead joined in
three different opinions. Justice Thomas, joined by Chief Justice Rehnquist and
Justices Scalia and Kennedy, contended that the establishment clause ought to be
interpreted to allow direct public aid to sectarian schools so long as it is provided in
accord with the principle of neutrality. The clause prohibits religious indoctrination
by government, he stated. But if aid is provided on a neutral basis to public and
nonpublic schools alike, he argued, there is no violation of the establishment clause:
If the religious, irreligious, and areligious are all alike eligible for governmental
aid, no one would conclude that any indoctrination that any particular recipient
conducts has been done at the behest of the government .... If the government is
offering assistance to recipients who provide, so to speak, a broad range of
indoctrination, the government itself is not thought responsible for any particular
indoctrination. To put the point differently, if the government, seeking to further
some legitimate secular purpose, offers aid on the same terms, without regard to
religion, to all who adequately further that purpose ..., then it is fair to say that
any aid going to a religious recipient only has the effect of furthering that secular
For that reason, Justice Thomas argued, whether a religious institution is pervasively
sectarian or not is constitutionally irrelevant and that factor ought to be disavowed.
Even if public aid is or can be used for a religious purpose by a recipient school, he
said, it is constitutionally immaterial so long as the public aid itself is secular in
nature and is distributed on the basis of religiously neutral criteria.
Justice Souter, joined by Justices Stevens and Ginsburg, contended, on the other
hand, that the establishment clause bars “aid supporting a sectarian school’s religious
118 Agostini v. Felton, supra, at 230.
119 120 S.Ct. 2530 (2000).
120 Overturned in part were Meek v. Pittenger, 421 U.S. 349 (1975) and Wolman v. Walter,
exercise or the discharge of its religious mission.”121 There is no single rule guiding
the implementation of this “substantive principle of no aid,” he said. Instead, he
argued, the Court has looked at a variety of factors – whether the entities benefitted
are pervasively religious, whether the aid is provided directly by government or
reaches the religious institutions only through genuinely independent choices of
individuals, whether the aid is itself secular in nature or divertible to religious use,
whether it is in the form of money or services and materials, whether it supplants or
supplements “traditional items of religious school expense, and whether it is
substantial. Neutrality is an important criterion but not a sufficient one, he argued,
in part because it has had at least three different meanings in the Court’s
jurisprudence. It has been used to mean the “median position between aiding and
handicapping religion” required by the establishment and free exercise clauses
considered together, a benefit to religious institutions that is secular and nonreligious
in nature, and, most recently, evenhandedness in the distribution of public aid. To
make the latter meaning the sole constitutional criterion, as Justice Thomas would,
he contended, be a “sharp break with the Framers’ understanding of establishment
and this Court’s consistent interpretive course.” Direct aid, he concluded, cannot,
consistent with the establishment clause, be used for religious indoctrination; and he
found that in this case it had been so used.
Justice O’Connor, joined by Justice Breyer, authored the determinative opinion
in the case and the one that, as a consequence, provides the most authoritative
guidance on the current meaning of the establishment clause.122 She agreed that
neutrality is an important criterion but disagreed with what she termed the
“unprecedented” view of Justice Thomas that it is a constitutionally sufficient one.
She disagreed as well with his view that “actual diversion of government aid to
religious indoctrination is consistent with the establishment clause.” “Our school-aid
cases often pose difficult questions at the intersection of the neutrality and no-aid
principles and therefore defy simple categorization under either rule,” she stated, and
individual cases require the courts “to draw lines, sometimes quite fine, based on the
particular facts of each case.” Under the primary effect test, she argued, direct
government aid programs cannot define their recipients on the basis of religious
criteria or result in religious indoctrination. Moreover, she contended, the aid itself
must be secular in nature, and it must be restricted to secular use by the recipients.
Justice O’Connor rejected the rationale of the earlier cases of Meek and Wolman
that any aid to the educational function of sectarian elementary and secondary schools
inevitably advances religion because of the schools pervasive sectarianism.
“[P]resumptions of religious indoctrination,” she said, “are normally inappropriate
when evaluating neutral school-aid programs under the Establishment Clause.” For
a program providing secular aid on a neutral basis, she contended, the question is
whether the aid has, in fact, been diverted to religious use; and that is an issue, she
said, requiring proof of violation. In this case she found such proof to be lacking.
Justice O’Connor also rejected the Court’s prior rule that intrusive government
monitoring is necessary when public aid flows directly to a pervasively religious
121 Helms v. Mitchell, supra, at 2572 (Souter, J., dissenting).
122 Id. at 2556 (O’Connor, J., concurring in the judgment).
entity. In the past that necessity had itself been sufficient to render an aid program
unconstitutional, because it inevitably resulted in excessive entanglement between
government and the religious institutions that were monitored. In this case both the
statute and implementing state and local regulations required some oversight of the
religious institutions’ use of the government-provided instructional materials and
equipment, and Justice O’Connor found these requirements to be sufficient to deter
and detect religious use of the public aid and insufficient to render the program
These decisions and opinions seem to make clear that for a majority of the
Justices (those joining in the Souter and O’Connor opinions), direct public aid must
still be limited to secular use by recipient religious institutions in order to pass muster
under the establishment clause. It also seems clear that for a different majority of
Justices (those joining in the Thomas and O’Connor opinions), the question of
whether a recipient institution is pervasively sectarian is no longer a constitutionally
determinative factor. Thus, there seems no longer to be a presumption that in some
kinds of institutions (such as sectarian elementary and secondary schools) public aid
will inevitably be used for purposes of religious indoctrination; to show that a
particular aid program violates the establishment clause, the Court now appears to
require proof that the aid has been used for religious purposes. Similarly, the Court
also no longer appears to require an intrusive monitoring of the institutions’ use of
the public aid to be sure the limitation to secular use is honored, although some
degree of review still seems to be required.
Certain aspects of the charitable choice provisions that have been enacted or
received some legislative action clearly satisfy these requirements. The provisions
do not give religious institutions any special entitlement to public aid, i.e., eligibility
is not determined on the basis of religious criteria. Charitable choice simply requires
that religious entities be considered as eligible on the same basis as nonreligious
institutions. In addition, the charitable choice provisions bar the use of public aid for
sectarian worship, instruction, or proselytization, i.e., they require that the aid be used
only for secular purposes.
But it still appears to be the intent of charitable choice that the religious entities
receiving direct public aid be able to employ their faiths in carrying out the
subsidized programs; and to the extent they do so, a constitutional question seems to
exist even under the Court’s revised interpretation of the establishment clause.
Moreover, it deserves mention that Justice O’Connor’s opinion, which proved
decisive in Mitchell, simply left open the possibility that other factors might be
constitutionally necessary. In upholding the ESEA program at issue in the case, she
cited not only the factors that the aid was distributed on the basis of neutral, secular
criteria, that it was secular in nature, and that there was little evidence of diversion
to religious use – all of which appear to be constitutional requirements for a majority
of the Justices. She noted as well that the statute required the aid to supplement and
not supplant the schools’ own funds, that title to the instructional materials and
equipment had to remain in the local educational agency, that no funds ever reached
the coffers of religious schools, and that there were “adequate safeguards” to prevent
the aid from being diverted to religious use. And then she simply concluded:
Regardless of whether these factors are constitutional requirements, they are
surely sufficient to find that the program at issue here does not have the
impermissible effect of advancing religion.
This jurisprudential situation appears to leave charitable choice programs
vulnerable to the possibility of litigation.
(2) Indirect aid. As noted, the charitable choice measures that have been
enacted or approved also apply in some instances to aid under the pertinent programs
that is received by participating religious organizations in the form of vouchers or
certificates. For such indirect aid it appears more certain that the various provisions
of charitable choice can be implemented coherently and consistently with the
establishment clause, and recent decisions by the Court do not appear to have
materially altered the constitutional framework.
Public aid that is received only indirectly by sectarian institutions has been
given greater constitutional leeway by the Court than direct aid. Such programs still
must be religiously neutral in their design and have been held unconstitutional by the
Court where their structure has virtually guaranteed that the assistance flows largely
to entities that it has presumed to be religion-pervasive, such as sectarian elementary123
and secondary schools. However, where the design of the programs has not
dictated where the assistance is channeled but has given a genuine choice to the
immediate beneficiary (the taxpayer or voucher recipient), the Court has held the
programs to be constitutional even though institutions it has presumed to be124
pervasively sectarian have benefitted. Justice Powell, in a concurring opinion in
Witters, summarized the critical factors as follows:
Mueller makes the answer clear: state programs that are wholly neutral in
offering educational assistance to a class defined without reference to religion
do not violate the second part of the Lemon v. Kurtzman test, because any aid to
religion results from the private choices of individual beneficiaries. Thus, in
Mueller, we sustained a tax deduction for certain educational expenses, even
though the great majority of beneficiaries were parents of children attending
sectarian schools. We noted the State’s traditional broad taxing authority ..., but
the decision rested principally on two other factors. First, the deduction was
equally available to parents of public school children and parents of children
attending private schools. Second, any benefit to religion resulted from the125
“numerous private choices of individual parents of school-age children.”
Thus, with respect to aid in the charitable choice programs that might be
received by religious institutions in the form of vouchers or certificates, the Court’s
123 Committee for Public Education v. Nyquist, supra, and Sloan v. Lemon, 413 U.S. 825
124 Mueller v. Allen, 463 U.S. 388 (1983); Witters v. Washington Department of Social
Services, 474 U.S. 481 (1986); and Zobrest v. Catalina Foothills School District, 509 U.S.
125 Witters v. Washington Department of Services for the Blind, supra, at 490-91 (Powell,
decisions suggest that it generally makes no difference whether the institutions are
deemed to be pervasively sectarian or not. So long as the initial beneficiaries (TANF
clients, for instance) have a genuine choice about where to redeem the vouchers or
certificates, i.e., they have a range of religious and secular institutions from which to
choose, even pervasively sectarian institutions appear to be able to participate
“consistent with the Establishment Clause.” If, on the other hand, charitable choice
is implemented in such a manner that a religious entity is the only viable choice for
a voucher recipient, the program risks being found to violate the establishment
The Court’s apparent abandonment in Mitchell v. Helms, supra, of the
presumption that some institutions are so pervasively sectarian that it is impossible
to limit direct public aid to sectarian use does not seem to materially affect this
framework for indirect aid.126 As noted, for indirect aid the critical questions have
been whether the aid is distributed on the basis of religiously neutral criteria and
whether there is a genuinely independent intervening choice between the
government’s initial distribution of the aid and its ultimate receipt by a religious
As noted at the beginning, charitable choice is an ongoing effort to widen the
universe of religious organizations that can participate in publicly funded social
welfare programs. More specifically, its intent appears to be to allow religious
organizations to continue to practice and express their faith[s] in carrying out such
programs rather than having to secularize their operations. Whether its provisions
actually allow that to happen is a matter of debate. But to the extent that charitable
choice does do so, charitable choice appears to push the envelope of existing judicial
interpretations of the establishment of religion clause of the First Amendment
concerning direct public funding of religious organizations, even as revised by the
126 Justices Thomas, O’Connor, and Souter all discussed the issue of indirect aid at length
in Mitchell. Justice Thomas argued that there really is no difference between direct and
indirect aid programs benefitting sectarian schools. He contended that even a per capita
direct aid program does not necessarily implicate the government in religious indoctrination
by the recipient institutions, not only because it was distributed on an evenhanded basis but
also because all of the students in the private sectarian schools were there because of the
independent decisions of their parents. Those decisions, he stated, meant that the aid was
provided “pursuant to private choices.” Justices O’Connor and Souter rejected this blending
of the Court’s direct and indirect aid cases. “A per capita aid program,” Justice Souter
asserted, “is a far cry from awarding scholarships to individuals, one of whom make an
independent private choice” to use it at a religious school. Justice O’Connor contended the
distinction remained important, inter alia, for purposes of endorsement. When government
provides aid to a school on a per capita basis and the school uses it for religious
indoctrination, she said, “the reasonable observer would naturally perceive the aid program
as government support for the advancement of religion.” Moreover, they both contended,
under Justice Thomas’ view there would be nothing to preclude the government from
making direct money payments to churches. “Under the plurality’s regime,” Justice Souter
stated, “little would be left of the right of conscience against compelled support for
Supreme Court’s recent decisions on the subject. As a consequence, charitable
choice may, at least in some forms of its implementation, invite litigation that tests
the continuing viability of those interpretations. As noted before, two such cases
appear to have been filed to date.
Appendix: Comparison of Charitable Choice
Provisions That Have Received Legislative Action
gov. to allowthat rel.from dis-interference
rel. orgs. toorgs. retaincriminatingwith internal
participate oncontrol overdue to org.’governance
same basis asexpressionreligiousand religious
nonrel. orgs.of beliefscharactersymbols
Act of 2000
ship Act (H.R.
Comparative Chart (cont.)
Title VIIprograms to of direct aidto require
allowing with establish-sectariancorporation to
ation inor prosely-
Children’s XX XX
Health Act (P.L.
CommunityXX (also mustXX
Renewal Taxconform with
Relief Act (P.L.free exercise
(H.R. 1501, S.
Act (H.R. 3073)
of 2000 (H.R.
AmericanXX (also mustXX
ship Act (H.R.free exercise
Education XX XX
Comparative Table (cont.)
9. Permits10. Bars11. Requires12. Allows
use of orgs.rel. disc.that objectorsaudits of rel.
own fundsagainstbe given anorgs. but
and prosely-to be
CSBG (P.L. 105-XAct has--X
Act (P.L. 106-
Relief Act (P.L.
(H.R. 1501, S.
Fathers Count ActXXXX
of 2000 (H.R.
Act (H.R. 1776)
Even Start (H.R.--X----
Education -- X -- X
Comparative chart (cont.)
13. Stricter14. Says(15) Bars 16. Bars17.Allows
statethat aiduse of orgs.gov. fromrel. orgs. to
provisions financialworship,corpor-rules re
ptedor prosely-alcohol on
Children’sUnless X (drugs
Health Actstate fundsand
(P.L. 106-310)are com-alcohol)
Community – –– –-
Relief Act (P.L.
Juvenile X -- -- -- --
Act of 2000
Ameri c an -- -- -- -- --
ship Act (H.R.
Education XXX-- –