Remarks of Carl Esbeck
MR. KAVANAUGH: I am Bret Kavanaugh. I will be the moderator for
the second panel this morning. I am a partner at Kirkland and Ellis
in Washington, and along with Nicole Garnett, Head of the School
Choice Subcommittee of the Religious Liberties Practice Group.
The first panel was about policy, to some extent, and what's going
on on the ground, but in this day and age, of course, no question
of policy, of course, and particularly questions of policy that
implicate religion, can be discussed or analyzed without the overlay
of the United States Constitution, or to be more precise, the overlay
of the views of the individual Justices of the Supreme Court, or
to be even more precise, the overlay of the views of Justice O'Conner,
who basically controls the votes on the Supreme Court in Establishment
How does Charitable Choice fit within the confines of the Establishment
Clause? How should it? What values does the Establishment Clause
serve, and what values does Charitable Choice serve?
How do the two mesh together? Is the value of a quality predominant
that religious organizations should be given at least an equal place
in our society, or is the value of separation predominant; that
government should perform its functions; that religious organizations
should perform their functions, and never the twain shall meet?
In reality, of course, the current doctrine is really an amalgam
of those principles, and, indeed, we saw that just this last term
in the Supreme Court where in the Santa Fe case, the Court ruled
that a student speaker before a football game could speak a message
that solemnized the event, so long as the speaker did not utter
any religious words, the religious message disfavored.
On the other hand, in Mitchell v. Helms, the Court upheld a government
program that provided educational aid to schools, including parochial
schools, on a neutral basis. In that case, the aid was computers,
primarily, that the government was providing to schools.
In that case, the principle of equality was triumphant, the principle
of neutrality. Charitable Choice poses a number of difficult Constitutional
issues at the crossroads of the two competing principles that I
Can the government give money to a faithbased organization if
the money supports the religious message of that organization? Can
the government distinguish among religious organizations, working
through some religiouslyaffiliated providers but not others that
are, quote, "pervasively sectarian," unquote?
Are there Constitutional limits on the intrusiveness of such programs,
on what they do to the religious organizations? That is something
the first panel spoke about.
And to speak to these and numerous other Constitutional issues
that Charitable Choice raises, as well as the policy issues that
really at times can't be separated, we have assembled an excellent
panel. Let me introduce them in the order they will be speaking:
Carl Esbeck is Director of the Center for Law and Religious Freedom,
the Advocacy Division of the Christian Legal Society. He is presently
on leave from the University of Missouri School of Law where he
is a professor.
He has taught courses in Constitutional Law, Federal Civil Rights
and Religious Liberty. He has published widely on First Amendment
religious issues and drafted legislation enacted by Congress and
in various state legislatures.
Of most relevance here, Professor Esbeck was the progenitor of
Charitable Choice, the provision in the 1996 Federal Welfare Reform
Act designed to enable faithbased social service charities to cooperate
with state and local agencies in assisting the poor and needy.
He has written widely, as I said, including an excellent piece
entitled A Constitutional Case for Government Cooperation with FaithBased
Social Service Providers.
Elliott Mincberg is General Counsel and Legal and Education Policy
Director of People for the American Way Foundation, which is a 300,000member
national organization that promotes public education in Constitutional
and civil rights.
He has served as cocounsel on a number of important First Amendment
and education cases, including litigation challenging school voucher
programs in Milwaukee, Cleveland, Pennsylvania, and Florida.
He, too, has written and spoken extensively on education and First
Amendment issues, and we welcome him here today.
Steffen Johnson is an attorney at Mayer, Brown and Platt in Chicago,
where he is a member of the firm's Supreme Court and Appellate Practice
Group. He specializes in Constitutional and commercial litigation.
This Fall, he will be serving as a lecturer in law at the University
of Chicago Law School, and teaching a course on Religion and the
Steffen recently served as Supreme Court cocounsel for the Petitioners,
the successful party, in Mitchell v. Helms, the computers case that
Last year he served as cocounsel for Wisconsin State Representative
Polly Williams and a group of school children in the Supreme Court
phase of a suit challenging Milwaukee's school voucher program.
Jim Dwyer is an Assistant Professor at the William and Mary School
of Law where he teaches Family Law and Juvenile Law. He received
a law degree from Yale in 1987, and he's an author of a book entitled
Religious Schools versus Children's Rights.
He has also published several articles on the rights of parents
and children in connection with children's education and other aspects
of children's upbringing.
He recently completed a manuscript for a book entitled Vouchers
Without Strings: A ChildCentered Assessment of Aid to Religious
And, finally, Scott Somerville is Executive Director for the Center
for the Original Intent of the Constitution, which is a joint project
of the Home School Legal Defense Association and Patrick Henry College.
As chief draftsman for the Center for the Original Intent of the
Constitution, Scott writes amicus briefs for the United States Supreme
He has worked at HSLDA since 1992, and has represented HSLDA and
member families in nineteen states and the District of Columbia;
he, too, has written and spoken extensively about parental rights.
With no further ado, Professor Esbeck.
PROFESSOR ESBECK: Good morning. Thank you for coming, and your
willingness to discuss Charitable Choice.
I suppose it falls to a professor to start off with some definitions
of terms. Sitting through that first panel, it became apparent that
the words, Charitable Choice, are being used in two different ways,
and I think that that's fine. But it's going to be important that
you understand the different ways in which we are using the term.
The narrow sense of Charitable Choice, and the meaning that I have,
is that there are three different federal revenue streams that pick
up the various provisions and protections of Charitable Choice.
Those three federal revenue streams are: TANF, Temporary Assistance
for Needy Families that comes out of the '96 Welfare Reform Bill;
WelfaretoWork monies; and finally Community Services Block Grant
Charitable Choice also is being used in the broader sense of a
reapprochement between faithbased organizations that deliver social
services and state and local governments. There has been a thawing,
if you will, of the chilly relationship between those two institutions.
I want to start off by saying that in drafting Charitable Choice,
there were basically three principles that we had in mind, and to
some extent I'm echoing the remarks of Stanley CarlsonThies, but
I think that the principles are extremely important and they bear
repeating. I am going to go beyond the remarks of Stanley CarlsonThies
and relate these three principles that are in Charitable Choice
to specific statutory language.
So let me just identify the three principles and then I'll come
back and elaborate upon each. The first is the nondiscrimination
provision. Basically, the idea is equal treatment of all private
sector providers of social services as to eligibility requirements
for federal programs, without regard to religion. I am sure you
understand that, at least as to welfare, the federal government
provides the money, but there is devolution of program design to
the state and local governments.
The second principle is institutional autonomy. In fact, the title
of this particular panel alludes to this being very much an endangered
concept. The principle is about protecting, in its essential religious
character, faithbased organizations should they choose to cooperate
with government in delivering services to the poor and needy.
The third principle is the free exercise rights of the ultimate
beneficiaries - who, I think, were called "clients" in
our earlier panel. The beneficiaries are, of course, the people
who qualify for the services because of their economic status or
because of some other need.
As an aside before I jump into each of these three principles
with somewhat more elaboration, you should understand that Charitable
Choice at least allows for both direct and indirect funding of social
service providers, including FBOs. That is to say, if a state or
local government wants to, it can issue vouchers, or, if the Vword
is unacceptable it certainly would be in some communities call them
certificates, call them scholarships, call them what you want, but
it would be indirect funding. There are also the direct forms of
funding, grants and purchaseofservice contracts.
Now let me pick up this first principle of nondiscrimination:
Two things were considered paramount, at least from an Establishment
Clause standpoint. The first is that the government's program has
to have a secular purpose. Second, that the independent sector providers
of services are to be selected on one criteria only, and that criteria
is which organizations can provide services effectively and efficiently.
That is to say that Charitable Choice looks to how government funds
are actually spent. It is particularly concerned about who you are
as a provider, but what you can do.
This does not mean that a provider will get funded because it's
religious just the opposite. It means that an FBO is eligible for
funding notwithstanding being religious. In other words, another
way of saying this is that there is no religious quota.
Charitable Choice in this regard is a complete repudiation of
that juridical category called "pervasively sectarian,"
which was simply a surrogate for saying that certain religious groups
necessarily would spend funds that they received through government
programs in an inappropriate way, rather than doing the job that
they're being contracted to do, i.e. provide the services.
The secular purpose here is aid to the poor and needy. Welfare,
whether it be TANF funds or WelfaretoWork funds, is not aid to the
FBO; rather, FBOs, are, indeed, given resources by the government.
FBOs add value, I would say, not in all instances, but in many instances,
they add considerable value, and then pass it on to the people who
are the ultimate objective of the government program, the poor and
The second principle is institutional integrity, or protecting
religious character, should the organization that receives a grant
or a contract happens to be an FBO. Here, I want to reference some
of the statutory protections, because, again, it is easy to claim
that you are going to "sell your soul" if you take the
money. Indeed, there is a prior track record that is none to happy
in that regard. Anticipating that problem, Charitable Choice put
in place some statutory safeguards.
Let me start with subsection (b). This is a quote from the legislation:
"The purpose of this section (and then it lists a couple of
purposes --but one of which is the purpose of this section) is to
allow aid without impairing the religious character of such organizations."
Subsection (d)(1) reads, "a religious organization participating
in a program shall retain its independence from federal, state,
and local governments, including such organization's control over
the definition, development, practice, and expression of its religious
That is a very broad, very comprehensive bulwark of protection
in the statute itself. Subsection (d)(2)(A), protects against the
government forcing FBOs to alter their polity, which they may hold
out of their religious doctrine.
Subsection (d)(2)(B) provides that FBOs need not strip their buildings
or their walls of religious art, scripture, or icons or symbols;
in other words, they need not somehow desacralize their facilities
or physical space.
Subsection (f) says that they can continue to hire on a religious
basis. This is absolutely essential. A faithbased organization that
has a particular way of understanding itself, can hardly maintain
that understanding over a very long period of time if at least the
key job positions are not held by people in common cause with the
particular world view of the organization. Thus, they may continue
to hire on a religious basis.
Finally, Subsection (i), specifies that if the Government is not
in compliance, there is a private right to sue the government. Generally,
you do not have to actually sue, but rather the right is prophylactic.
When the government understands that it can be sued, it will be
brought to the negotiation table and hopefully back into compliance
with the legislation.
The third principle is protection of the free exercise rights
of the ultimate beneficiaries. Of course, we are sensitive to the
fact that the beneficiaries may or may not have their own religion.
They may even be antireligious so we wanted to take that into account.
Hence, subsection (g) says that beneficiaries cannot be discriminated
against on a religious basis in the provision of services. Second,
they can choose to avoid a faithbased organization if they object
on a religious basis.
The latter principle really has a double aspect. Normally what
is thought of is, you have a nonreligious beneficiary who wants
to avoid having, as was said in the first panel, religion rammed
down his throat. But there is a second free exercise aspect to this
as well. These beneficiaries may affirmatively desire to receive
services from a faithbased organization. If an FBO is available
because it's been successful in receiving a grant or contract, then
the beneficiary can affirmatively meet that need. Again, if these
particular rights of the beneficiaries are being violated, there
is a private right to sue, which again has a very useful prophylactic
The final point I want to touch on is compliance mechanisms. Understandably
and, I think, rightly - there is a lot of concern. Once FBOs have
contracts, grants or are eligible to receive vouchers, through indirect
funding or otherwise, how do we make sure that the FBOs remain in
compliance. Because, of course, they do have responsibilities.
The compliance mechanisms are multiple, and let me just name or
list some of them: First, quite apart from this legislation, if
nonprofits receive federal financial assistance, they are required
to do an audit, and the audit is to be by a certified public accounting
That requirement vests if a nonprofit receives more than $25,000
in total federal funds per annum. This would apply to an FBO recipient
of Charitable Choice funding.
Second, subsection (h) of the law states that the government has
the authority to do an audit. FBOs have to be ready to submit to
that and cooperate fully with the audit.
Third, the government can require the particular organizations
to create separate 501(c)(3) non-profit organizations. This requirement
is not stated explicitly in the law, but derives from the legislative
There was a provision in the bill that said the government could
not do that, but that was removed during the legislative process.
So, I think the appropriate implication is that state and local
government can require, in order to be eligible, all organizations,
whether they are faithbased or not, to have separate 501(c)(3) organizations.
This would have a laudable effect on FBOs and others because it
would require keeping separate accounts because there is a separate
Fourth, beneficiaries can bring a private cause of action, and
that is going to have a policing effect on both FBOs and the government.
If a beneficiary thinks that he or she is discriminated against
on a religious basis by an FBO, there will be the potential of an
The last one I'll mention is in subsection (j) of the legislation.
FBOs cannot use federal funds which are traced to expenditures which
are inherently religious. The legislation says something like "no
funds for worship or proselytizing and religious instruction or
sectarian instruction." This subsection (j) applies if the
funding is direct. What would be very normative for state and local
governments to do, and I think entirely in compliance with Charitable
Choice, is that if they are issuing grants or contracts, they would
put into these documents a requirement of an assurance of compliance,
going to this particular requirement.
Also it would not be unusual, at least if it is a very large grant
or contract, to require some type of selfmonitoring and selfreporting,
as a way to make assure that the organization is in compliance.
FBOs may be sued for refunds if, in fact, they are found not in
compliance with their contracts.
The foregoing are all common ways in which procurement of services
is done by state and local governments.
I would add, although it's not in this list of five, in America
we are very fortunate that not only within our government do we
have checks and balances, but also in the private sector. We have
activist groups on all sides of issues. Separation of church and
state and no aid to religion is well represented by activist groups
on both sides of the issue. That has a useful teaching and prophylactic
effect. For example, one of my copanelists here, Elliott Mincberg,
his organization, People for the American Way, is very forthright
and activist in forcing their particular view of noaid separationism,
and that has certainly brought much more scrutiny to this entire
area. I think that sort of thing has been healthy. Thank you.