Faith-Based Initiatives – Testimony of Wade Henderson

Location: Senate Judiciary Committee

Mr. Chairman and Members of the Committee: My name is Wade Henderson and I am the Executive Director of the Leadership Conference on Civil Rights (LCCR). I also serve as Counsel to the Leadership Conference Education Fund (LCEF). I am pleased to appear before you today on behalf of the Leadership Conference to discuss the charitable choice provisions in the Bush Administration’s “faith-based initiative;” and to discuss the potential harm to civil rights laws that could result from the failure to consider appropriate safeguards.

The Leadership Conference on Civil Rights is the nation’s oldest, largest, and most diverse coalition of organizations committed to the protection of civil and human rights in the United States. Since its establishment in 1950 by A. Philip Randolph, Arnold Aronson, and Roy Wilkins, three civil rights leaders who would eventually receive the Presidential Medal of Freedom, the Leadership Conference has promoted the passage, and monitored the implementation, of laws designed to achieve equality under law for all persons in the United States. LCEF was founded in 1969 as the education arm of the civil rights coalition and continues to fill that role today.

Today, the Leadership Conference consists of over 180 organizations working in concert to advance the cause of equality. Our coalition includes groups representing persons of color, women, labor organizations, persons with disabilities, older Americans, gay men and lesbians, major religious groups, and civil liberties and human rights interests. It is a privilege to represent the civil and human rights community in addressing the Committee today.

We would like to make clear at the outset of this testimony that the Leadership Conference approaches this issue with great respect for the many religiously-affiliated organizations, such as Catholic Charities USA, United Jewish Communities, and Lutheran Social Services, that have long received federal, state, and local funds to serve important needs in our communities. The charitable choice provisions under consideration today will have no effect on the important work of these well-known organizations. Moreover, to my knowledge, none of the Leadership Conference members that oppose charitable choice are seeking to change, in any way, the operations of the several religiously-affiliated groups that already participate in federal programs.

We also strongly support the fundamental principle that our nation’s privately-funded religious organizations — our churches, synagogues, mosques, and other houses of worship — should always enjoy the constitutional freedom to pursue their religious missions through their ministries to our communities. The Leadership Conference and many of its members have supported religious freedom with our own long history of working toward laws that protect religious exercise, including the right of each person to be free from discrimination based on religion. Further, I would add that, as with the religiously-affiliated groups, no one opposed to charitable choice is seeking to change the way any of these privately-funded religious groups operate.

The Leadership Conference also would like to take this opportunity to offer its commitment to work with members of the Senate Judiciary Committee to find a better, non-discriminatory way to ensure that federal money goes to whichever organization can best serve a community’s needs and is willing to abide by the laws that apply to federal contracts and grants. We understand the frustration of the many smaller privately-funded service providers, both religiously-affiliated and secular, who feel excluded from federal programs because the regulatory hurdles seem too high. We believe that we can find an appropriate way to bring these groups into federal programs, even as we remain committed to civil rights protections and other necessary safeguards. We believe that such a “win-win” solution is possible, and is well worth all of our efforts to find it.

CHARITABLE CHOICE: A NEW THREAT TO CIVIL RIGHTS

The Leadership Conference believes that the employment provision of charitable choice threatens a cornerstone principle of our nation’s civil rights laws, i.e., that federal funds generally will not go to persons who discriminate against others. It is hard to overstate the importance of our national commitment to this principle. Not only should all of us be free from discrimination by the government itself, but we also should have the assurance that our government is not providing federal dollars to programs that discriminate against others.
Ironically, we are defending the principle that the government should not fund persons engaged in religious discrimination almost sixty years to the day it was first enunciated. On June 25, 1941, President Franklin D. Roosevelt signed the first Executive Order, No. 8802, prohibiting federal defense contractors from discriminating based on race, religion, color, or national origin. Not only was the Roosevelt Executive Order the beginning of a long national commitment to barring federal funds to most persons who discriminate against others, it also was the first national victory of the modern civil rights movement.

Sixty years ago, despite the increase in employment as the nation prepared for World War II and provided defense materials to the rest of the free world, minorities were largely excluded from the nation’s economy. The use of federal funds as the source of all of the new economic activity compounded the injustice of discrimination. Recognizing the special harm of federal dollars going to persons who discriminate, President Roosevelt agreed to sign a landmark executive order prohibiting federal defense contractors from discriminating based on race, religion, color, or national origin.

In subsequent executive orders, President Roosevelt covered all federal contracts, including non-defense contracts; and Presidents Truman, Eisenhower, Kennedy, and Johnson expanded the protections. The current executive order is Executive Order No. 11246, which has been in effect since 1965. The executive orders also spawned scores of nondiscrimination provisions that bar discrimination in specific federal programs, and influenced the development of agency rules that prohibit discrimination by federal contractors and grantees.

It is this fundamental principle of non-discrimination, reflected first in these executive orders, and later, in the host of civil rights statutes that ban discrimination by recipients of federal funds, that we are committed to protecting here today. Based on our review of the development of charitable choice legislation, the Leadership Conference has concluded that charitable choice threatens to erode that fundamental principle by allowing federal funds to go to persons who discriminate in employment based on religion.

The core of the charitable choice provisions of the faith-based initiative is its anti-civil rights employment provision. For example, the charitable choice provision in S. 304, the “Drug Abuse Education, Prevention, and Treatment Act of 2001” provides that the Title VII exemption for religious organizations — which permits religious employers to prefer members of their own religion — “shall not be affected by the religious organization’s provision of assistance under, or receipt of funds from, a program” described in the legislation. Allowing Title VII’s religious exemption to be applied to staffing decisions by federally-funded religious organizations would result in a harmful exception to the longstanding principle that federal funds generally may not go to persons who discriminate.

The objective of charitable choice is to push aside every other statutory and regulatory protection against religious discrimination. The sixty years of developed civil rights protections against federal funds going to persons who discriminate in employme