Remarks of Professor Marci Hamilton
We have two featured speakers and the hope is that each of them
will be able to go into a little more detail about their positions
and views on the questions presented, but also that there will be
plenty of time for you all to ask the questions maybe that you didn't
have time to ask before, to throw out the thoughts that you have
been developing throughout the day on some of the topics that our
earlier panels covered.
Earlier this week some of you might have seen this--- the Texas
Governor was talking to the NAACP Convention and he offered the
following remarks that I think we could reflect on here, and see
whether this is a vision that we should be embracing: Government
can spend money but it cannot put hope in someone's heart or a sense
of purpose in their lives. This is done by caring communities, by
churches, synagogues, mosques and charities that serve their neighbors
because they love their God. What we need now is a new attitude
that welcomes the transforming power of faith. In the words of a
writer who visited the Motthaven section of the Bronx: "The
beautiful old stone church is a gentle sanctuary from the terror
of the streets outside." In city and after city for the suffering
and the hurting the most hopeful passageway is the door to the House
The Governor continued: "We are going to extend the role
and the reach of churches, synagogues and mosques, mentors and community
healers in our society. I am not calling for government to step
back from its responsibilities," he said, "but to share
them. We will always need government to raise and distribute funds,
but we also need what no government can provide the power of compassion
and love and prayer."
One thing that I would like for us to consider today, sort of
as a way of integrating all that we have heard so far, is whether
we as citizens and as lawyers and perhaps for some of us also as
religious believers what we should make of those remarks I just
read. Is that vision of civil society--is the Governor's view of
the role of religious institutions in that society--something we
should embrace? Or is this vision haunted by a danger--a danger
that I think Scott Somerville talked about and Eliot Mincberg talked
about--the danger of undue concentrations of power and influence
in religious groups and of undue influence of Government on religious
Now thus far in this conference we have heard accounts from scholars
and activists and citizens who are kind of in the trenches in Charitable
Choice, and that has been very valuable. We have also heard some
people talk about some of the Constitutional questions that are
raised in the Charitable Choice context.
What does the Establishment Clause require? What does the Free
Exercise Clause require?
Our next speakers are going to, I expect, expand on the Constitutional
debate that has started and examine whether Charitable Choice--either
with or without regulatory strings--is consistent with the Constitution.
That is, they will ask: Did the framers envision what some people
have called a naked public square? Or would their concerns about
interreligious strife and freedom of conscience have led them to
disapprove today's Charitable Choice proposals?
My own hope though is that in addition to these matters of legal
doctrine our speakers are going to take it to the next level, I
suppose, to tackle some of the broader, perhaps theoretical, questions
about the role of religion in a pluralistic and liberal and secular
society. How private does the Establishment Clause require religion
to remain? How engaged in public life may or should religious believers
be? Are religious believers an essential part of a pluralistic democracy
or do they threaten to destabilize, perhaps even to undermine it.
So I look forward to hearing from our speakers on these and other
Today we have with us Professor Marci Hamilton and Dr. Steven
Professor Hamilton, Marci Hamilton, is one of the nation's leading
and most prolific Constitutional scholars and commentators. She
holds the Thomas H. Lee Chair of Public Law at Cardozo. She has
been a visiting scholar at Emory and she will be visiting this year
at NYU. I give credit to that visit for NYC's recent rocketing upwards
in the U.S. News rankings. I knew there was a secret somewhere.
Professor Hamilton received her J.D. from the University of Pennsylvania.
She holds Master's Degrees in Philosophy and in English. After law
school she clerked for Judge Becker and for the woman I have now
learned is the most powerful woman in the world, Justice Sandra
Day O'Connor--Ed Lazarus, who is a writer you might have heard of,
recently proclaimed her the most powerful woman in the world.
Professor Hamilton is also an expert on religious freedom legislation
and litigation. As we heard before, she was the person who argued
in the Supreme Court the case involving the Religious Freedom Restoration
Act and successfully convinced the Court that that Act violated
Section 5 of the Fourteenth Amendment.
Professor Hamilton is widely published in many fields, too many
to list here. Her most recent works include a forthcoming study
of the history and underlying philosophy of the copyright clause
and also a book entitled, "The Reformed Constitution: Calvinism,
Representation, and Congressional Responsibility."
She is also the author of a recent article which is in your CLE
material, which I think is going to be basis for some of her remarks
today on the Constitution, "Power, the Establishment Clause,
Dr. Steven Monsma is one of the foremost experts on Charitable
Choice programs and on the role of religiously-affiliated service
providers in these programs. He is a Professor of Political Science
and the Chair of the Social Sciences Division at Pepperdine, where
he has taught since 1987. And before repairing to the sunny beaches
of Malibu, he spent 10 years in the lion's den of public service,
serving in the Michigan House of Representatives and in the Michigan
Senate and then after that for three years in the state's Department
of Social Services.
He holds degrees from Calvin College and Georgetown and earned
his Ph.D. from Michigan State. Like Professor Hamilton, Dr. Monsma's
list of publications is too extensive to do justice to here, but
his recent books include "The Challenge of Pluralism: Church
and State in Five Democracies" and "When Sacred and Secular
Mix: Religious Nonprofit Organizations and Public Money."
He recently published a detailed study of the religious institutions
that participate in Charitable Choice programs which was published
by the Notre Dame Journal of Law, Ethics and Public Policy, and
which is excerpted in your CLE materials.
Professor Hamilton and Dr. Monsma, thank you for being here and
welcome. We look forward to hearing from you. Let's start with Professor
Thank you very much, Rick. That is a very nice introduction and
thanks to all of you for being here today. This is probably one
of the most interesting topics we have at the very moment because
we have both Presidential candidates pushing us for charitable choice.
This is an interesting political move that historians will write
about years from now.
Let me start by being as subtle as I always am. The Federalist
Society--Republicans in particular--have lost their way on the religion
clauses. When you have a coming together like this of conservatives
and Washington-generated acronyms "Faith Based Organizations,"
you know you have been Washingtonized and you should run.
I want to start by talking about James Madison, the Federalist
Society's patron philosopher. He would not have thought that charitable
choice was the right answer. Madison preached distrust of every
social entity. By the time that he and the other framers arrived
at the Constitutional Convention, the entire Convention was a feast
of distrust. They did not trust organized religion. They did not
trust the people. They did not trust the legislature. They did not
trust the Executive. They did not trust the Judiciary. There was
nothing in colonial or United States society that they found was
worthy of absolute power. And so their answer was to divide power
and disperse it throughout the society, and they did it through
a number of mechanisms.
They divided power among the three branches of the Federal Government,
through FederalState separation of power, through ChurchState separation
of power, a division which is recognized in the Constitution even
before the First Amendment in the Religious Test Oath Clause.
The framers did not have a utopian viewpoint. They did not believe
that we can make it all work out by all working together. Rather
they assumed that individuals will engage in inappropriate exercises
of power, and that any entity that holds power will attempt to abuse
it. This was especially true for Madison. There has been nothing
since the drafting of the Constitution that would prove him wrong.
Every structural entity that has held power in American society
has at one time or another attempted to abuse it. There is not a
position in any branch that we can point to and say: "Well,
there is a position in government where those holding power never
abuse their power." Just as the Framers expected, every position
has been subject to the possibility and the temptation of abuse.
Madison was quite consistent in his position of distrust, which
he extended to organized religion. His argument was that not even
three pence should go to the support of religious activities from
the government. Why not three pence? Because it is the start of
a slippery slope. If they receive three pence, they will ask for
five pence. If they ask for five pence, they will ask for five more
pence. Once the funding door is open, it is difficult to turn down
such requests. Madison's answer to government funding of religion
was "no." Throughout his Presidency, he was very consistent
in arguing against financial support for religious activities including
the funding of a Chaplain in Congress which he thought was plainly
at odds with the Establishment Clause.
At the end of his Presidency, Madison said the one issue that
had not attained enough attention in the U.S. was the accumulation
of assets and power by ecclesiastical bodies. The framer of the
First Amendment understood that power is seductive and that it will
induce any entity, including religious entities, to abuse their
power. That is why we have not just a Free Exercise Clause but also
an Establishment Clause.
That leads us to the inevitable conclusion that certainly religious
entities are capable of asking for more than the Constitution will
let them have. They are capable of standing at the statehouse door
and asking for more than they ought to and they are doing that in
I have just completed an article on transfers of wealth from government
to religion. There has been no time in our history when we have
had more opportunities and more instances where religion stands
at the statehouse door or the Congress steps to ask for government
Vouchers are just one example. Charitable Choice is another example.
There is an expanding concept of taxexempt status. There are direct
payments to faith healers through Medicare.
Let's contrast Madison's viewpoint with our viewpoint today. Madison's
viewpoint was to assume abuse of power to put limits on the exercise
of power, and to enforce these limits.
We are Pollyannas compared to the framers. We have never known
religious oppression. The colonial society came over from Europe
fully understanding the capacity of religion to suppress. It was
religious entities that were the agents of suppression in Europe,
not just governmental entities. There was no separation of church
and state. The Framers, especially Madison, feared tyranny by religion
as much as they feared tyranny by the government. But today we are
Pollyannas and we assume that all religion is good. All religious
programs will do good for our citizens. And, most important for
Charitable Choice, religion is the answer when government fails.
Charitable Choice is on its face an attempt by government to subsidize,
not just proselytizing that is clearly unConstitutional but core
mission activities. The core of services provided by the vast majority
of religious entities that are engaged in Charitable Choice, are
the mission activities of those religious entities. Charitable Choice
programs pay not for secular activities, but rather mission: healing
the sick, feeding the poor, ministering to the weak, ministering
to the addicted. The merging of the boundaries between government
and religion is the result of Charitable Choice.
The key problem with Charitable Choice--and this is absolutely
the central problem--is accountability. Any time any dollar of public
money is spent, the people have a right to require accountability.
Any time a government decision is made they have a right to ask
for accountability. And the Framers clearly understood that. The
Framers put into the Constitution that Congress must publish a journal
of its proceedings and an account of appropriations. Congress must
publish the votes on particular pieces of legislation if even just
onefifth of the members request it.
The President must deliver in a State of the Union Address every
year on a regular basis. And we have a long tradition in which the
Judiciary publishes its written opinions and those opinions belong
to the public. Information about government has been something that
is at the core of our Constitutional heritage.
The single biggest challenge to the U.S. constitutional scheme
is the task of keeping rulers accountable. With the growth of the
administrative state in this century--beginning in the 1930s--we
have had a particularly ticklish situation. How do you make an unaccountable
bureaucracy accountable to the people? The answer was originally
the Administrative Procedures Act. That didn't work. The government
learned how to use it against the people. The answer then was FOIA,
the Freedom of Information Act.
Government does not have a natural incentive to let everything
be seen by the people, but rather only those aspects of its actions
that are flattering to itself. Every time that we have a new set
of Constitutional or statutory guidelines, the government learns
a new way to try to avoid letting the people know exactly what it
is doing. It is the natural relationship between government and
The people have a need in order to be free to know what the government
is doing. So there is this constant friction over accountability.
That friction exists despite the clear requirements in the Constitution
With Charitable Choice, government is giving money to religious
organizations that have Constitutional protection against close
analysis by the government. If accountability is so difficult with
officials who are already cabined by Constitutional procedures,
it is going to be twice as hard with groups that are already protected
by the Constitution from government intermeddling. So accountability,
I think, is the key issue. The question is whether or not we can
The second problem with Charitable Choice is that churches inevitably
are going to lose their unitary, independent identity. We have heard
talk this morning about how you can solve all the problems posed
by the Establishment Clause by just having the religious organization
cleave off a portion of it--become a separate 501(C)(3)--and that
is the group that will provide this particular service without providing
the religious message that goes with it. Thus, the religious organization
won't proselytize while you provide the service.
That is government sanitization of religion. It is a disaster
Perhaps, religious entities are capable of making a decision as
to whether or not they ought to sell out and paternalism perhaps
is not called for here. But let's return to James Madison.
What was Madison's point? A union of church and state is bad for
both. And if religious entities are placed in a position of receiving
government funds to fund their heretofore core mission activities.
Those that do take it will diminish the quality and the centrality
and the unity of their religious message. That is bad for religion,
not just bad for the government or the people.
We have already seen how money for religion traveling through
the government operates in Germany. In Germany, individuals are
taxed a percentage of their income and that money is given to the
church that they designate. What is the situation in Germany? The
situation in Germany is nobody gives a penny more than the government's
percentage. When the churches come asking for more money, the answer
is: "Why should we give you any more money? You have already
gotten money from the government. Do better with what you have received
or go talk to the government about getting a higher percentage."
By interposing itself between the member and the church, the government
has falsified that relationship. Germany's experience tells us that
as an empirical matter, using the government as a conduit for money
is not necessarily the answer.
As I said earlier, the biggest problem in the charitable choice
context is accountability. In Germany, what the people are saying
is, "We are not accountable for charity because the government
has already taken that over. We don't need to worry about it. You
go talk to the government about it." That attitude results
in less voluntary giving to religious entities.
What we have seen in Texas is a charitable choice program in which,
unfortunately for Texas, one of the entities engaged in child abuse.
I suppose it is alleged child abuse at this stage, but it is still
an allegation of child abuse, and that is a nightmare for Governor
Bush. I am not up here criticizing Governor Bush. The point is the
inadequacy of the accountability mechanisms in any statute may permit
religious entities to engage in inappropriate conduct. And religious
entities are perfectly capable of engaging in a wide range of inappropriate
The additional problem is that once the government gets into the
act, it may not choose between religions. So if the World Church
of the Creator--which is a sophisticated White Supremacist group
with an amazingly scary website--if the World Church of the Creator
and the Baptists and the Ku Klux Klan say: "we want government
money to run a particular program," the government cannot choose
between those religious entities or the basis of their beliefs.
We can decide not to fund any entity, or we can decide to fund
the one providing the best results. If the World Church of the Creator
has the best percentage success rate in treating drug addiction,
then the World Church of the Creator must be able to receive the
What we heard over and over this morning is that this is a tight
union between Christian groups and government. We never heard once
mention of Jewish groups or Muslim groups or the French groups,
of which I have already mentioned some. So this one clear Constitutional
principle brings us back around. How do you ensure accountability
in a Charitable Choice program? I don't think you do it without
the kind of massive oversight that requires a diminution in the
quality and the strength of the religious body.
To quote John Calvin, the one activity that religion may never
let go to the State is caring for the poor. And why? Because when
you let it go to the State, the religious entity loses its moral
ground over that particular issue.
As a conservative, I am completely behind the notion that we need
to reduce welfare, completely behind the concept that we need to
reduce taxes, completely behind the concept that we need to increase
individual liberty and choice. But what we have in Charitable Choice
is a situation where there's a federal pot of money and at the decision
to let the program go, federal welfare, the federal officials couldn't
stand to let the money go. So instead of saying we cut the programs,
we reduce your taxes, they say we cut the programs and we are now
going to give the money to the entities we want to give it to. And
those would be religious entities.
The irony in all of this is that the Republicans have become more
liberal than the liberals. The only difference is who they choose
to receive the huge pot of government money that they are handing
out. And we have Gore on board as well. So we have two entities.
And in my view, from a Madison perspective, from the perspective
of limiting government, what Charitable Choice means is the socialization
of welfare services and the consequent diminution in independence
and liberty and integrity of religious entities. In other words,
we all lose. James Madison would not have been impressed.