Remarks of Professor Marci Hamilton

PROFESSOR GARNETT:

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 of God.

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 groups?

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 questions.

Today we have with us Professor Marci Hamilton and Dr. Steven Monsma.

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, and Vouchers."

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 Hamilton.

PROFESSOR HAMILTON:

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 this era.

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 money.

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.

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 of accountability.

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 enforce it.

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 for religion.

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 conduct.

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 money.

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.