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					                              The Roundtable
                              on Religion and Social Welfare Policy




                                    Panel Discussion Transcript
                                                June 17, 2003

   New Federal Policies on Grants for Building
                    Aid for Houses of Worship

                                                                    A Legal Analysis


          Richard Nathan, Director of The Nelson A. Rockefeller Institute Of Government and The
                                              Roundtable on Religion and Social Welfare Policy

   Ira C. Lupu, F. Elwood and Eleanor Davis Professor of Law, George Washington University and
             Co-Director of Legal Research, The Roundtable on Religion and Social Welfare Policy

J. David Kuo, Deputy Director of The White House Office of Faith-Based and Community Initiatives

                                            Congressman Chet Edwards, (D-Texas, 11th District)

                            Rebecca Rees, Legal Counsel, The Becket Fund for Religious Liberty

    Elliott M. Mincberg, Vice-President, General Counsel and Legal and Education Policy Director,
                                                         People for the American Way Foundation

Robert Tuttle, Professor of Law at George Washington Law University Law School and Co-Director
                         of Legal Research, The Roundtable on Religion and Social Welfare Policy



       An independent research project of the Rockefeller Institute of Government
                       Supported by The Pew Charitable Trusts
                Panel Discussion Transcripts

NEW FEDERAL POLICIES ON GRANTS FOR BUILDING AID FOR
       HOUSES OF WORSHIP: A LEGAL ANALYSIS



                         JUNE 17, 2003

            The National Press Club, Washington, D.C.
                                               Panel Discussion Transcript, June 17, 2003



Welcome
        RICHARD NATHAN: Good morning. My name is Dick Nathan, and I have the
honor of being the director of the Nelson Rockefeller Institute of Government, the public
policy research arm of the State University of New York. We’re located in Albany, and
one of our major activities, inaugurated one and one-half years ago with the support from
The Pew Charitable Trusts, is The Roundtable on Religion and Social Welfare Policy.

        We have a distinguished panel this morning to discuss important aspects and
viewpoints on what essentially is a new subject. Because of the bully pulpit of the
presidency and the interests of many political leaders in the country, it is a very important
subject concerning the role of churches and faith-based groups in relation to government,
and particularly in social policy. The Roundtable is an independent, nonpartisan program
designed to help people understand this important new subject and its roots in our legal
system and our Constitution, and particularly in the First Amendment.

       My job today is easy. I get to introduce Professor Ira “Chip” Lupu, who is one of
our main partners in this important work, and then I’m going to turn the program over to
him to be the moderator of this panel, which is being webcast live and will be available
widely on our very active website on religion and social policy.

       Chip Lupu is the Elwood and Eleanor Davis Professor of Law at George
Washington University School of Law. He has a B.A. degree from Cornell and is a
graduate of Harvard Law School, where he was case editor of the Harvard Law Review.
After practicing law in Boston, he joined the faculty of Boston University where he
taught and was professor-in-residence on the appellate staff of the civil division of the
United States Department of Justice. He joined the faculty of George Washington
University in 1990. He is a nationally recognized scholar in constitutional law, with an
emphasis in his writings on the religious clauses of the First Amendment.

       Along with his colleague, Bob Tuttle – you’ll be hearing from him – he is
engaged in long-term research on the constitutional status of religious institutions, and we
are proud to have George Washington University, Chip Lupu and Bob Tuttle, as our
partners in this important work. So now I’m going to turn the program over to Professor
Lupu.

       Thank you, Chip.




The Roundtable on Religion and Social Welfare Policy                                       1
New Federal Policies on Grants for Building Aid for Houses of Worship



Introduction
       CHIP LUPU: Thank you, Dick, very much for the kind introduction. And thank
you – and to David Wright and the entire staff of The Roundtable – for putting this event
together this morning.

       Congressman Edwards said to me a few minutes ago that it’s a shame that so
many of the church-state debates that go on in Washington go on in the House of
Representatives at midnight rather than at nine in the morning or two in the afternoon,
when the world might be watching or listening. And so, we’ve scheduled one that we
hope the world will watch and listen to, because we think the issues to be discussed this
morning are quite important.

        I have two jobs this morning. One is to set the stage for the conversation in which
the panelists will then engage, about the reversal of federal policy on grants to houses of
worship or places of religious instruction. I’m going to say a little bit about background
law and background circumstances that led to this new policy, and then I will introduce
our distinguished panel. I will introduce them all at once and then let the conversation
roll on from there.

        And I want to begin with a story from the summer of 2001. It’s a story about
some academic insight. Professor Tuttle, who is at the end of the panel, and I had just
received an invitation to write a paper for the Boston College Law Review – a church-
state symposium in the Boston College Law Review – and we were struggling to come
up with a good topic., And Bob said to me, “I have an idea: how about the
constitutionality of government grants for preservation of historic buildings?” And I
laughed, and I said, “Who is going to be interested in that? Is there anything going on
with that subject? The federal government hasn’t done it for many years. Is there some
real interest in this subject?” And Bob said, “Well, maybe there will be; maybe there
won’t. There are some very interesting questions there. No one has ever explored them
in a law review article, so let’s give it a try.”

        The piece, which was great fun to write – and he was absolutely right that the
questions were not simple and had not been explored in the literature – was published in
the fall of 2002, and by December 2002, the Federal Emergency Management Agency
had reversed policy on these matters and had made a grant to the Seattle Hebrew
Academy after it had been damaged in an earthquake from the fall of 2001.

       Also in December of 2002, the United States Department of Housing and Urban
Development proposed some rules in which it said it was going to include houses of
worship or faith-based organizations and their buildings in various programs in which the
government might pay for construction or repair or maintenance of the building, so long
as there were government-financed social services going on in that building. In early
2003, the Department of Agriculture made a grant to some rural facility run by a faith-
based organization that was going to have, among other things, some secular social


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                                               Panel Discussion Transcript, June 17, 2003

services in it. On May 27, 2003, the White House Office on Faith-Based and Community
Initiatives, together with the National Park Service, announced that it was making a Save
America’s Treasures grant to the Old North Church in Boston, reversing federal policy of
many years on that particular subject, and on May 28, 2003, the Department of Justice,
the Office of Legal Counsel in the Department of Justice – this is the office that renders
opinions to other parts of the executive branch about the legality of proposed actions –
that Office of the Department of Justice released two opinions: one to the Federal
Emergency Management and the other to the National Park Service supporting the
legality of these particular grants.

        This is a reversal of policy in the federal government. Professor Tuttle was
exactly right that this was an issue that was going to ripen and be important, and this is an
issue that constitutional lawyers understand is controlled in some strong fashion by
constitutional law. But of course, one of the questions for discussion this morning is
what is that law and to what extent has it changed. And let me just hit some highlights in
that story before I turn the matter over to the panel.

        We have to start this conversation 200 years ago or more because the question
that this policy reversal presents is as old as the republic. In 1785, Virginia had
disestablished the Anglican Church, and Patrick Henry wanted to find a way to continue
government support for the Anglican Church – couldn’t support that church alone, and so
proposed a religious assessment for all Protestant churches in Virginia. Taxpayers would
designate which church their money would go to, and the money would go to support
ministers and teachers of the gospel and the building of places of divine worship. And
this was James Madison’s leading foray into church-state politics.

        He said, listen, this is a very bad idea. He wrote the now-famous Memorial and
Remonstrance Against Religious Assessments, a document which the Supreme Court in
the 20th century has more than once cited as an important part of our constitutional
history, and he argued that the idea of supporting ministers or teachers of the gospel or
places of divine worship with government money was a bad idea. It was bad for
government; it was bad for places of worship. The idea was dropped in Virginia,
Jefferson’s bill for religious liberty was imposed instead, and that episode is a crucial part
of 20th-century Establishment Clause history.

        Let’s skip forward to the early 1970s, which is – as I have appraised the
development of constitutional law in the 20th and 21st century – the high-water mark of
the separationist era in the Supreme Court. And there were two major cases decided in
the early 1970s that bear most heavily on the problem we are going to discuss today.

         In 1971, the Supreme Court decided Tilton against Richardson. It involved a
program of grants to colleges and universities by the Federal government to build
buildings, libraries, music, art, science, and the Court upheld that program with one
exception. The program said that grants made to religiously affiliated schools had a
restriction on use of the building to secular use only for 20 years, and after 20 years, the
restriction would expire and the building could be used for any purpose by the school.



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New Federal Policies on Grants for Building Aid for Houses of Worship

And a unanimous Supreme Court said no, the 20-year expiration is unconstitutional. If
the government finances these buildings, they may never be used for religious worship or
religious instruction. So in perpetuity that restriction has to remain.

        Two years later in 1973 the Court decided the Nyquist case, which involved
tuition tax credits going to a sectarian school, and also involved a provision for grants to
private schools for maintenance and repair. And even though the tuition tax credits part
of the case was decided on a five-to-four basis against the state, the ruling on
maintenance and repair grants to private schools – that it would include sectarian schools
– the Supreme Court voted eight-to-one this was unconstitutional. Why? Because some
of this money might be used to repair chapels, classrooms where religious instruction
would take place, and it offended, the Court said, this principle that the government may
not directly finance places of religious worship or instruction.

       The law has clearly changed in the general sense under the Establishment Clause
since 1980, and the question is how much has it changed, where has it changed, and to
what extent do the changes bear on this problem of the government supporting the bricks
and mortar of places of religious worship and religious instruction.

        The movement in the law has been away from separationism               and towards
neutrality or evenhandedness, the idea that religious organizations can be    helped to the
same extent and the same ways as comparable secular organizations. But        that principle
has not yet come up in a case in which grants for bricks and mortar of        the buildings
themselves are involved.

        Now the states, as well as the federal government, have had concerns about the
scope of those cases from the early 1970s. In 1988, the director of the Historical
Commission of Connecticut asked the attorney general of Connecticut, Joe Lieberman,
whether or not grants for historic preservation for churches in Connecticut were
Constitutional under the state and federal Constitution. And Joe Lieberman, acting as
attorney general of Connecticut, said yes, I think they are. This case is different from the
cases in the early ‘70s; the law has moved in this direction, and I think these grants are
permissible.

        But in 1995, when the solicitor of the United States Department of the Interior
asked the Office of Legal Counsel for the Department of Justice, headed by Walter
Dellinger, the same question – "has the law changed in a way that makes historic
preservation grants permissible for houses of worship?" – Walter Dellinger, for the Office
of Legal Counsel, said no, it has not. Citing the cases from the early 1970s, he said the
rule is still that the government may not make direct grants for houses of worship or
places of religious instruction.

        Now there have been additional intervening decisions between 1995 and today,
and my guess is we’ll hear about them some from people on the panel. There remains a
question of whether the law has moved enough in particular ways to justify a reversal of
federal policy.


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                                               Panel Discussion Transcript, June 17, 2003



         But we do know that, beginning in 2001, the president began his faith-based
initiative, that the federal government has made a number of policy changes, actual or
proposed, to level the playing field and involve religious organizations in provision of
government services and other programs, and we have, in the last six months, as I recited
at the beginning of these remarks, had a number of steps taken by the federal
government, by FEMA, by HUD, by the Department of Justice, and by the National Park
Service to include houses of worship or places of religious instruction in the possibility of
federal grants for the construction or the repair, or the maintenance or preservation of the
real estate.

        I expect we’re going to hear more about the Department of Justice’s new opinions
on this subject, as well as other things I’ve mentioned, in the panel today. And we have a
very distinguished panel today to share with us their thoughts on the matters I have now
tried to outline with you. I’m going to introduce them all. They will then speak in the
order in which I have introduced them. Congressman Edwards, we understand, may have
to leave before the entire program is done because of matters on the Hill for which he is
personally responsible. We very much appreciate his taking time this morning before
that matter to come and share his thoughts with us.

        We have five speakers on our panel today. The first is David Kuo, who, if you
read his biography in the materials we’ve given you, has had an extremely distinguished
and eclectic career. He has been successful in the private sector. He has written a book
about the dot-com revolution and the dot-com industry. He was the policy director for
Senator John Ashcroft who was – when he was Senator Ashcroft – a pioneer in the
charitable choice movement, and he is now a special assistant to the president and a
deputy director of the White House Office on Faith-Based and Community Initiatives.

         Congressman Chet Edwards will go second this morning. Congressman Edwards
is in his seventh term as the United States’ Representative from the 11th district of Texas.
He has had a distinguished career in many respects, but of particular interest to us this
morning is that he has won – if I’m counting correctly from his biography – at least four
major awards for his devotion to and his commitment to matters of church-state
separation and religious freedom.

        Our third speaker this morning will be Becky Rees. Becky is a legal counsel to
the Becket Fund, which litigates religious liberty cases. As a law student, Becky wrote a
pioneering article about evenhanded treatment – or the denial of evenhanded treatment –
for religious organizations in social service contracts with the state. She, after law
school, clerked on the United States Court of Appeals, worked for the Solicitor of Labor,
and is now litigating religious liberty cases with the Beckett Fund.

         Our fourth speaker this morning is someone I’m guessing many of you know.
Elliot Mincberg is vice president and general counsel for People for the American Way.
Elliot, a distinguished lawyer in Washington for many years -- and a partner at Hogan &
Hartson, a very fine law firm in the city -- went to People for the American Way a



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New Federal Policies on Grants for Building Aid for Houses of Worship

number of years ago. He has litigated virtually every important religious liberty case,
especially cases involving religion and education, decided by the courts, including the
Supreme Court in the last 15 years, most notably recently the Cleveland voucher case.

        And fifth and last is the academic genius at the end of the table who saw that
historic preservation grants to houses of worship was a subject worthy of academic
attention. Professor Tuttle is a colleague of mine at George Washington University. He
has a Juris Doctor degree, as well as a Ph.D. in religious ethics from the University of
Virginia. He has done a great deal of work representing the Lutheran bishop of
Washington on a variety of matters, and as Dick Nathan said, he is my co-director for
legal research and analysis for the Roundtable.

       So with that, Mr. Kuo, it’s to you.




6                                    The Roundtable on Religion and Social Welfare Policy
                                              Panel Discussion Transcript, June 17, 2003



Panel Discussion
        DAVID KUO: Good morning. I think I have a distinction on this panel of being
the only non-lawyer, which I think means that I have the privilege of being able to stand
up here and engage in political platitudes and not say anything of any substance. I will
leave the substance to everybody else.

        The question on the table is a great one. Is it permissible for the federal
government to look to houses of worship, to partner with houses of worship, and to put
houses of worship on a level playing field with other institutions of civil society? The
Bush administration’s answer to that question – probably not surprisingly – is yes. I
don’t think I’m going to get away with just saying that, though.

        The context, I think, is significant here. Back in July of 1999, President, then
Governor, George W. Bush, in a speech in Indianapolis, Indiana, called “A Duty of
Hope,” laid out what would be the compassionate conservative agenda for his
administration.     In that speech, then-Governor Bush said that if elected, his
administration would look to churches and charities and corporations and community
groups and synagogues and mosques to partner with the federal government in providing
social services to people in need.

        Why was this a distinction? Why was this different? Why did this make him a
different kind of Republican? It did so because of the word “partner.” Traditionally,
conservatives have offered sort of an either/or view of the world when it came to social
services: either the private sector took care of it or there would be – which is sort of the
preference of most conservatives to have the private sector take care of a lot of the social
service needs – a certain small percentage of social needs that would be handled by the
federal government.

        What the governor rejected in that speech was this idea of an either/or situation.
He said that if elected, his administration would look to partner with private sector
organizations to provide social services. This is an interesting idea. It was one that was
interesting enough that Vice President Gore, during the campaign, said exactly the same
thing: that it would be very important and very significant for the federal government to
partner with churches and charities and synagogues and the like in providing social
services.

        For neither of these men was this a terribly unique proposition. It is something
that I think everybody in this room has been talking about for a long time. You know,
even when I was sitting in Senator Ashcroft’s office in early 1995 and we were talking
about a welfare proposal, and we came across a situation in New York – again, an
anecdote – that a foster care family in New York had been forced to take down a crucifix
from the wall because some bureaucrat in New York City government said that it was an
improper violation of church and state, and we came up with this little thing that said, you
know what, it makes sense for keeping church/state laws intact, for faith-based


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New Federal Policies on Grants for Building Aid for Houses of Worship

organizations to be treated on a level playing field with secular organizations. And this
little thing was called Charitable Choice. It got attached to the welfare bill: 67 votes in
the Senate, signed into law by President Clinton, and we thought that was it.

        This is one of the great lessons in Washington, isn’t it? You can’t ever propose a
policy and have it go away. It will always return in some form or another, and in this
instance it returned -- it was signed into law two more times by President Clinton. Again,
Vice President Gore embraced and endorsed Charitable Choice during the presidential
campaign of 2000. This was a non-controversial idea, that faith-based organizations
should be treated on a level playing field with secular organizations. It is, in many ways,
what we were talking about here, the evolution of the courts’ theory of church-state
relations.

        The president was then elected and, obviously, followed through on his
commitment. He established the Office of Faith-Based and Community Initiatives, and
tasked it with three things. One was to explore, to objectively explore, what are the areas
in the federal government where barriers exist to including faith-based and community
groups in government partnership? The result of that was the unlevel playing report that
was issued in August of 2001. That report, called “Unlevel Playing Field,” documented
for the first time in the history of the federal government what the actual barriers were for
participation by these faith-based and community groups.

         Some of the things were highly expected. There was an attitude of discrimination
because of the sense that faith-based organizations shouldn’t be included or weren’t
allowed to be included in the federal grants process. Some of them were somewhat
unexpected. Preferential treatment was given to larger organizations that had already
received federal funds, and so therefore, smaller organizations, regardless of whether they
were faith-based or not, were less likely to be included. Or less likely to receive a grant
simply because they didn’t have that extra bonus of 10 or 20 points out of 100 points that
made the life of the federal bureaucracy easier in administering grants --because, let’s
face it, at the end of the day it’s easier to deal with somebody who you’ve already worked
with and who’s already established than somebody who’s new.

        But in the course of these administrative findings, we came across a number of
things that were particularly troubling. One of them was this idea that would later be
overturned, or the fact that in Seattle a Hebrew day school was denied funds for
rebuilding its building simply because it happened to be a religious day school.

       Now, imagine you’re living in a city where the school been damaged and ravaged
by an earthquake and what happens? Everything else gets rebuilt except for this religious
day school. The Jewish kids in this day school were still going to school in trailers.
Why? Because somebody determined that it would be improper for federal funds to be
used for rebuilding this religious day school.

       We looked at this, and looked at it very objectively and said, now, is there a
strong church-state reason for this not to occur? Is this a gross violation of church and


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                                               Panel Discussion Transcript, June 17, 2003

state to apply to religious day schools? And the answer that came back from White
House counsel, from the Department of Justice, from a number of other people that we
talked to was, absolutely not. What did come back, however, was that it might be more
difficult and would be legally more questionable, perhaps, if the money were to go to
rebuild actual practicing houses of worship.

        And so, as we went forward and came up with a plan of administrative reform to
be able to get rid of some of the barriers that we had identified in the “Unlevel Playing
Field” report, we decided we’d take a middle-ground approach, which was for an area
that seemed to us to be pretty straightforward; we would allow federal funds to go to
Seattle Hebrew Academy to rebuild the school.

        In a context of looking at Seattle Hebrew Academy, we were notified about the
Old North Church in Boston. Now, I happened to go to school in Boston, and on some of
those days when I arguably should have been in school studying – maybe if I’d done that
I could have become a lawyer – I was out walking around Boston, spending a lot of time
on the Freedom Trail and, frankly, getting a lot of ice cream. And I remember going into
the Old North Church a whole bunch of times. You know, “One if by land, two if by
sea” -- it’s the Old North Church. It was also close to Faneuil Hall and Quincy Market
where they had more good ice cream.

        And I remember going in there and just marveling at this place -- marveling,
frankly, at the crowds, the tourists who would go in and just look at this building, this
extraordinary building. I mean, in the United States of America there aren’t that many
historic buildings that go back to our founding where you walk in and you say these are
some of the roots of the America that we live in today, and that’s what the Old North
Church is. And I can tell you, every time that I’ve gone in there, there would be
hundreds and hundreds of tourists going and marveling and looking at this place. I tell
you, I never saw a single one of them on their knees praying. I certainly never saw a
sermon being preached from the pulpit -- not that either of those things are wrong.

        But when we got a call that the Old North Church had been denied funds for
historic preservation, we sort of raised our eyebrows and looked at this thing and said,
"okay, what’s the objective assessment here? What’s the real concern? What’s the
problem?"

       We were sort of surprised to find out that the intent of Congress when this passed
in 1995 was to clearly allow religious institutions to receive these funds. It was actually a
somewhat, a more than somewhat suspect opinion by the Department of Justice in the
Clinton administration that overturned this clear intent of Congress.

       And so we looked at this and we talked to outside organizations, and we talked to
people in Congress. We talked to the Department of Justice, and we talked internally. As
we do with absolutely everything, we took a very objective look at this and said, "what is
the problem?" -- especially when we discovered that this rule had been very selectively
applied. Martin Luther King’s home church, Ebenezer Baptist, had received funds. Why



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was it that the Old North Church shouldn’t receive funds? Why was it that Revolutionary
War barracks and slave barracks had received funds and that the Old North Church
shouldn’t?

        And so we worked with people at National Historic Preservation Trust and Save
America’s Treasures and so many other people to objectively look at the situation. And
the situation seemed to us to be very clear that this is a situation, frankly, of outright
religious discrimination.

        It is important for us to recognize the wall that exists between church and state.
Everybody recognizes this. This is not some attempt to breach or tear down that wall, not
one brick of it. But part of that wall is to recognize religious intolerance and bigotry and
discrimination when it exists. And what this administration has found in the first two and
a half years of existence is that there are instance after instance after instance where the
federal government has discriminated against people of faith because they simply are
people of faith, and this president and this administration believe that is wrong.

        That is why we took the position we took on Seattle Hebrew Academy. It is why
we have taken the position we have taken on the Old North Church, and the opening of
historic religious houses of worship for preservation. And it is why we have taken a
whole number of positions -- including a lot that you have heard about -- the president’s
executive orders, the various rules on Charitable Choice, on housing and urban
development, and so on and so forth.

        We really do hearken back to what the president, when he was governor, said in
the “Duty of Hope” speech, and that is that this administration will look to churches and
community groups and corporations and temples and synagogues and so on and so forth
to partner with the federal government on a level playing field, on an equal footing.

        We are very aware and actively seeking out ways to make that partnership work
better. There are a lot of things that come across our desk, you know, that came across
my desk yesterday, where somebody called and identified a particular problem and they
said, "you know, wouldn’t this be a great area for the federal government to get involved,
or for the White House to get involved?" And our answer was simply, we can’t do it
because it doesn’t fall within what we consider a very bright line, a very bright distinction
between a level playing field for faith-based groups and a level playing field for secular
groups, and a playing field that could be in any way tilted towards faith-based groups.

       And that’s an important distinction that we have made continually and that the
president makes in every speech that he has made on this particular topic. We are not
trying to create a faith-favored environment, we are trying to create a faith-friendly
environment, and that is a distinction with a difference.

        In all of the publications that we have put forward we have made it very clear: a
religious entity that receives money from the federal government can never, under any
circumstance, use that money to proselytize, for worship, for religious instruction, or for


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                                               Panel Discussion Transcript, June 17, 2003

anything else. For the non-lawyers among us we put it in simpler terms: you can’t preach
on Uncle Sam’s dollar.

        Virtually every time the president has gone out and talked about this in public or
in private he said this. If you go and you read the publications that we have made as an
office, the same thing is true; the same thing is clear. We don’t want it and it’s not good
for the churches. The churches don’t want it. The synagogues don’t want it. Nobody
particularly wants it. It would be wrong. It would be wrong for religion; it would be
wrong for government. But within this context we’re not talking about that. We’re not
talking about funding religion. All we’re talking about is creating a level playing field
for social services in America that can, under some circumstances, include faith-based
groups.

       So that is sort of the administration’s general context for all of this. I’m sure that
you will hear a lot more interesting debate and dialogue and discussion in the next few
minutes, and I look forward to it. And I thank you very much.

       (Applause)

        REP. CHET EDWARDS (D-TX): Good morning. I represent the community of
Crawford, Texas and Central Texas, but you will quickly find out that on this particular
issue of church-state separation, I do not represent the Bush administration. Rather than
beginning with my prepared remarks, let me just go directly into responding to some of
David’s comments so we can start to engage this panel in debate.

        One of David’s comments was, is it permissible for the federal government to
partner with faith-based groups and houses of worship on a, quote, “level playing field”
with other secular institutions providing social services? I would suggest that the first 16
words of the Bill of Rights were not designed to put religion and houses of worship on a
level playing field. Rather, just the opposite.

        The Bill of Rights, in those first 16 words that have worked so magnificently to
protect religious freedom in America, were designed to put religion and churches and
houses of worship above a level playing field -- not out of discrimination against religion
or antagonism against faith -- but out of the belief that religion is best and religious
freedom will survive and thrive the most if you put it up on a pedestal above the reach of
politicians in the federal government. I think the notion of putting houses of worship on
a level playing field is frankly a dangerous one that is directly contrary to the
fundamental principles of the First Amendment to our Constitution.

       Now, David also said that the question is whether we can partner with faith-based
groups. I would suggest that that’s not really the question because for years, under long-
standing law, the federal government has been able to partner with faith-based groups.
That’s really not a question here. If you don’t believe that, look at Catholic Charities,
look at Lutheran Social Services. I would suggest the real question is somewhat




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different. It is, what will the rules of that partnership be when you have commingling of
funds between the federal government and faith-based groups?

         I would also argue that prior to recent efforts over the last seven or eight years to
push Charitable Choice law into the statutes of this land of ours, we had three basic rules
that served our nation and the principle of religious freedom very well. First, was that
you don’t fund, directly with tax dollars, houses of worship and pervasively sectarian
entities. This fundamental principle was debated by our Founding Fathers and decided in
the first 16 words of the Bill of Rights that no American should be taxed to fund someone
else’s religion or house of worship. In 1833-- this was not a 1995 Clinton policy of the
20th century-- Massachusetts was the last of the original colonial states to disestablish
taxation from funding of houses of worship, and I would suggest that policy has served
our country well.

        The second rule of engagement or partnership in these long-standing partnerships
has been no proselytizing. And while David’s former boss, Senator Ashcroft, at one
point seemed to support the idea of direct proselytizing on federal dollars, it sounds like
today, David, the administration and I would agree that that would be a dangerous notion,
and I’m glad we have agreement on that.

        The next rule of engagement that I think has made sense for our country in
protecting individuals’ religious freedom has been when you have federal dollars, tax
dollars funding public jobs -- whether they be for a soup kitchen or for an alcohol
treatment program -- one cannot discriminate against another American citizen in job
hiring based solely on that person’s private religious faith.

        I find in the Administration regulations the word “discrimination against religion”
used repeatedly. First of all, I don’t think that, well, I think frankly Madison would be
surprised to find out that the first 16 words that he coined in the Bill of Rights were
designed to discriminate against religion. That was not the case. They were designed to
protect religion.

        But let’s assume for a minute that we, through our constitutional provisions, are
really intending to be antagonistic toward religion; we’re trying to discriminate against
religion. Let me give the administration that premise. What an odd way to solve the
discrimination against religion by pushing laws in this land that would allow one citizen
to give another citizen a religious test and force that person to pass that test in order to
qualify for a federally funded job.

        Under the latest HUD regulations, as well as other Charitable Choice legislation,
which has already passed, literally a faith-based group associated with Bob Jones
University could take your federal tax dollars and with it print an advertisement and run it
in the newspaper saying no Jews or Catholics need apply here for a federally funded job.
Subsidizing religious discrimination is not the way to solve a problem of discrimination
against religion. I would agree with David and the Administration that if there is
discrimination against religious groups who are willing to follow the three rules that I


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                                               Panel Discussion Transcript, June 17, 2003

have outlined of that partnership between government and faith-based groups, then we
should stop that type of discrimination, but in doing so we don’t need to legalize personal
discrimination against people simply because of their faith.

        And we all understand why a Baptist church can, with its own private money, hire
a Baptist minister, and not be forced to hire a Methodist or an Episcopalian or a Hindu or
a Muslim. That’s not at debate. But what should be at debate in this country today is the
Administration’s very focused efforts to put in place, in the law covering all social
spending programming – billions of federal dollars a year – the policy that one American
citizen, a private citizen getting federal dollars, can make someone else pass their
religious test in order to qualify for a federally-funded job.

        I think such an action is wrongheaded, I think it is dangerous, and I think it makes
a mockery of the principle of the free exercise of religion. Why should any American
citizen in 2003 have to choose between being honest about his or her personal faith and
getting a job, a federally-funded job for a soup kitchen or for an alcohol treatment
program, or for a community development block grant?

       Let me just briefly put what I consider to be this serious threat, this serious
encroachment against church/state separation, which in my opinion has been the
fundamental building block of protecting religious freedom in America --let me put it in
context just for a moment.

        This is not a new idea; this didn’t come up in the Gore/Bush debate. This issue,
of course, has been debated since our Founding Fathers’ time, and I thought was settled
200 years ago. But in recent years, before the Bush administration came into power, an
attempt began with the Gingrich revolution to, I believe, chisel away at the wall of
separation between church and state which Jefferson talked about with reverence in his
respect of that principle.

        Let me give you some specifics. First, in 1998, the Istook School Prayer
Amendment was an attempt to bring back government-organized prayers into our public
schools. The amendment was defeated, but without great pride I would admit to you that
over a majority of the House members voted in favor of that constitutional amendment to
basically undermine the principle of the First Amendment, in my opinion.

        I found it interesting that the Christian Coalition, in the aftermath of that
campaign, sent out a campaign brochure attacking me for my vote against amending the
First Amendment as being un-American, and perhaps in their eyes even a greater
personal attack than that, they said Chet Edwards’ position was even un-Texan. How
strange it is that 200 years after the Bill of Rights was ratified, that a member of Congress
in a campaign could be accused of being un-American for defending the present wording
of the Bill of Rights and opposing the amendment and change of those words.

       Then, as David mentioned, in the welfare reform bill there was legislation on
Charitable Choice attached to that. I would be willing to wager there were not a dozen



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members of the House or Senate that knew about those provisions in the welfare reform
bill. And yet, ever since, you know what has happened? They have said, "well, we
already passed that; we debated that in the welfare reform bill." Members of Congress
did not know about that.

        Then next, a few years ago the House tried to pass a resolution saying, and I
quote, it is the, quote, “necessary duty” of all Americans to pray. Now, since this was on
the House suspension calendar and required a super-majority, some of us were able to
defeat it. But I would point out that a majority of House members actually voted to say
the government should dictate that it is your necessary duty to pray.

        As a person of faith, I am dismayed that politicians in the federal government
would think they have a right to dictate it as Americans’ duty – necessary duty – to pray.
I have always seen prayer as a reverent, personal choice in exercising God’s divine gift of
free will, not a government duty.

        On several occasions, legislation has been voted on in the House to put the Ten
Commandments on schoolhouse – public schoolhouse – walls, using taxpayers’ dollars,
all across America. In December of last year, when the latest attempt was made to put
the Ten Commandments back into the law for public schoolhouses, I sent word to the
Rules Committee in the House that I was preparing amendments, one page at a time,
beginning with the Old Testament, then the New Testament, and then the Torah, and then
the Koran. Apparently the strategy worked because the Rules Committee pulled down
the Ten Commandments amendment. And my only disappointment was I didn’t have an
opportunity to testify and ask the Rules Committee at what point did that committee take
on the role of deciding which specific religious doctrine should be placed or not placed
on schoolhouse walls using taxpayers’ dollars?

       In summary, I think the intrusions on church and state are real; they’re not
hypothetical. I think they’re dangerous. And when you have the administration just two
weeks ago suggesting that, with the privatization of possibly up to 850,000 federal jobs,
and that those jobs would allow groups receiving the federal money to replace the work
of those jobs, could actually require religious tests be passed by job applicants, I would
suggest to you that religious liberty, the free exercise of religion, embedded in the
Constitution and its First Amendment, is at great risk today. Thank you.

       (Applause)

        BECKY REES: Let me begin this morning by telling you a little bit about the
Becket Fund, so that you have a clearer sense of the values that inform our view of the
use of public funding for bricks-and-mortar projects for structures that house religious
activities.

        The Becket Fund for Religious Liberty is a bipartisan and ecumenical public
interest law firm that protects the free expression of all religious traditions. The Becket
Fund defends religious expression of all people, not for political advantage or as an


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                                              Panel Discussion Transcript, June 17, 2003

evangelistic tactic, but because the founders of this country recognized religious freedom
is a basic inalienable human right. Therefore, it’s the Becket Fund’s position that
governments at all levels should acknowledge the human religious potential, avoid
interference with its full expression, and actively facilitate its voluntary cultivation.

        At the Becket Fund we understand that the goal of the two First Amendment
clauses, the Establishment Clause and the Free Exercise Clause, was to ensure the
integrity of religious organizations and individuals, and to minimize government
influence on religious expression. Therefore, the Establishment Clause prohibits
government favoring a particular religion and also for preferring irreligion over religion.
Furthermore, the First Amendment guarantees free speech, free exercise and freedom of
expressive association, protects the right of religious institutions to define and express
their own doctrines and to choose their leadership and members without government
interference.

        You’ve already heard generally from the other speakers about the bricks-and-
mortar debate, and I know we’ll have more time for discussion later, so in the brief
minutes allotted to me, let me first highlight two important First Amendment principles
that are well reflected in the policies we’re considering, and second, mention one area in
which the law could better reflect these principles; and third, close with some general
observations about what it means for the government to be neutral towards religion.

        First, it’s the Becket Fund’s position that the HUD-proposed regulations, OLC’s
FEMA opinion, and OLC’s North Church opinion are all, on their face, constitutional. In
fact, they do a good job of reflecting and complying with existing constitutional
jurisprudence, including the two First Amendment principles I’d like to specifically
discuss: anti-discrimination and religious integrity.

        Starting with anti-discrimination, the Administration’s recent decisions further the
First Amendment’s anti-discrimination principle by requiring that religious organizations
receive funding on an equal basis. While present to varying degrees in the Supreme
Court’s Establishment Clause jurisprudence, this anti-discrimination principle is
particularly clear in this court’s recent rejection of the so-called pervasively sectarian
doctrine. This now obsolete doctrine presumed that pervasively sectarian institutions
were incapable of respecting constitutional limitations on the use of direct aid. So it
presumed that any funding that went to these organizations would result in impermissible
religious indoctrination by the government.

         This doctrine caused the government to systematically prefer the less devout to
the more devout in funding decisions, and it also provided the more devout with a
perennial financial disincentive to be – an incentive to be less devout. On top of that, it
invited litigation and court inquiry into sensitive questions of religious belief and
institutional organization, culminating in judicial determinations of effectively whether
the funding recipient was too religious. Fortunately, several years ago a plurality of the
Supreme Court recognized the pervasively sectarian doctrine was, and I’m quoting, “born
of bigotry and should be buried now.” And a majority of the court would now reject



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presumptions of religious indoctrination and instead require proof of actual diversion of
public support to impermissible religious uses.

        Regarding that second constitutional value of religious integrity, the bricks-and-
mortar policies further this as well. They do so by allowing a religious organization to
provide services without removing religious art or icons, and allowing it to retain
religious terms in its name and religious references in a mission statement. And HUD’s
proposed rules protect the religious integrity of service recipients by prohibiting a
government-funded organization from discriminating against service recipients on the
basis of religion. We therefore applaud the Bush administration for changing regulations
and policies that had discriminated against religion and bringing them more in line with
current constitutional interpretations.

        Second, there is one area where the Becket Fund would like to see Congress and
the Administration more explicitly recognize these constitutional values of religious
integrity and anti-discrimination. We would like to see explicit protections for the rights
of faith-based organizations, like secular organizations, to engage in mission-driven
hiring. Obviously I have a slightly different opinion than Representative Edwards. For
religious service providers, mission-driven hiring may involve choosing employees on
the basis of religion.

        Now, one thing I would like to make clear right now is that Representative
Edwards talked about religious discrimination in publicly funded jobs. But think about it:
we’re not talking about whether the Department of the Interior can create a religious test
for federal employees, and when the government funds a study or gives a grant to an
interest group or to another project, people don’t say, oh, this is a government actor now.
Rather, people understand that these groups, even though they are doing work for the
government, can engage in mission-based hiring.

         For a religious organization to consider religion in employment decisions is not
only generally permissible under current law, it is absolutely essential to preserve
religious integrity, and it is one of the most fundamental American freedoms. Strangely,
however, opponents of the Faith-Based Initiative mischaracterize this innocent behavior
of mission-driven hiring as improper discrimination. The worst irony of this distortion is
that to prohibit faith-based employers from mission-driven hiring would be to
discriminate against the employer. After all, employers throughout this country are free
to hire like-minded applicants.

        For example, environmental groups can decide to hire only environmentalists, and
Planned Parenthood is free to hire only those who agree with its mission. It’s obvious
that to take away the rights of secular mission-driven groups to hire like-minded
employees would be to threaten the viability of the organization. In the same way, to
take away the religious organization’s ability to hire like-minded people would be to
attack its integrity, its identity, and what many hold to be the key to its success. In order
to avoid discriminating between religious and secular mission-driven employees, faith-
based organizations must be allowed to consider religion in hiring. The Administration


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                                                Panel Discussion Transcript, June 17, 2003

and Congress have recognized this religious hiring right in various contexts and we hope
that they will continue to make this protection of constitutional right explicit both in
statutory and regulatory law.

        Before making my last point I should note that although we believe the
Administration’s actions are constitutional, there is a wholly separate policy question of
whether the religious organization’s acceptance of public funding is wise. It is the
position of the Becket Fund that the Faith-Based Initiative in general that these policies in
particular are very likely to benefit society as a whole, but for a variety of reasons it’s less
clear whether the new government policies will benefit religious service providers and
the faith communities that sponsor them. Therefore, each faith-based organization should
carefully weigh the potential benefits and potential risks that come with accepting this
money.

        Finally, my third point. There is much talk these days about constitutionally
required neutrality towards religion. However, those on different sides of the issue define
neutrality in several different ways. We see government neutrality towards religion as
requiring that government influence over religion to be minimized. As I explained, the
government should neither give incentives nor deterrents to engaging in religious activity.
On the other side, however, some understand neutrality to require state-imposed
secularism. Although this is typically the result of well intentioned but overzealous
opposition to state-imposed religion, it is occasionally based on the same contempt for
religion that animates state-imposed atheism.

        In either case, the nominal goal of the government neutrality with respect to
religion, or the nominal goal is neutrality with respect to religion, but the effect is the
banishment of religion from public life. The laudable institutional separation of church
and state that the Constitution and the First Amendment ensure becomes the unworkable
separation of anything religious from anything political. Neutrality is mistakenly
understood to require the state to ignore the religious nature of humanity rather than to
acknowledge, accommodate and promote it. But the human desire to seek the truth, and
especially religious truth, cannot be overlooked, much less eliminated. By treating
religious contributions to public debate as out of bounds or merely tolerable, government
needlessly deprives itself, and in turn the people it exists to serve, of the rich moral and
political resources that so many religious traditions hold in stewardship for the good of
all.

        Thus, in this country, in embracing religious freedom we must avoid lapsing into
state-imposed secularism by acknowledging that the presence of religion in public life is
not merely inevitable but invaluable.

        In conclusion, let me briefly recap. As I explained, the Becket Fund believes that
the carefully drafted brick-and-mortar policies we’re discussing today are facially
constitutional.




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New Federal Policies on Grants for Building Aid for Houses of Worship

        However, we urge Congress and the administration to aggressively protect the
hiring rights of religious organizations. To do otherwise discriminates against religion
and threatens the very religious integrity that the First Amendment was designed to
protect. Both of these conclusions follow from our belief that the expression and
involvement of religion in public life is a good thing and is to be protected and
encouraged.

       Thank you.

       (Applause)

         ELLIOT MINCBERG: Good morning. At People for the American Way, I think
it’s fair to say we have a slightly different conception of religious liberty than the Becket
Fund does.

        We believe very strongly in protecting both parts of the First Amendment, the
Free Exercise Clause and the Establishment Clause, which properly read says that
government should not be promoting a particular religion or religion in general. And
most importantly, the policy reversals that we’ve seen from the Bush administration in
the last few weeks and months will not only violate these objectives but indeed endanger
religious liberty now and in the future.

       I want to talk about three things that are wrong in particular with these so-called
bricks-and-mortar policies, but let’s start out by recognizing what a breathtaking change
we really have.

         This is not just some obscure opinion of some misguided Clinton administration
official that we’re talking about. We’re talking about a government policy adopted
initially in the Reagan administration, reaffirmed in the first Bush administration, and as
Chip pointed out, affirmed by virtually unanimous Supreme Court rulings through the
1970s and later. As recently as 1995 the swing vote on these issues, Justice Sandra Day
O’Connor, cited with approval, for example, the Tilton v. Richardson decision.

        But nonetheless we’ve had a complete reversal saying that, literally, government
taxpayer funds can be used to build and rebuild and maintain houses of worship. Why is
that a problem? First, it diverts taxpayer money to promote specific religions. Mr. Kuo
started out by talking about the Seattle case and saying, well, we wanted to avoid
problems so we weren’t going to provide funding to – and I wrote this down – “practicing
houses of worship.” Well, guess what? That’s exactly what the Old North Church is; it’s
a practicing house of worship. They have church services, they do religious education
programs, they do all the things that you would expect an Episcopalian church to do, as
well it should. But when the government provides taxpayer supported money in order to
prevent its deterioration, to restore its ventilation system, to repair its windows – three of
the purposes of the grants – what it does is it allows, indeed is critical to allowing that
religious activity to take place within the walls of the church.



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                                              Panel Discussion Transcript, June 17, 2003

         Now, frankly, I expect the Old North Church could raise that money without the
government grant. Indeed, they have to raise about half of it in order to get the
government grant to begin with. But if indeed it is critical for the government to provide
that money for them to continue to exist, then in fact there is, to use Mr. Kuo’s phrase,
“preaching on Uncle Sam’s dollar,” because without Uncle Sam’s dollar, that church
could not function as a practicing house of worship. That is clearly against the
Madisonian and Jeffersonian principle, the principle that we cannot be compelled to pay
tax dollars to support religion that we may disagree with. Indeed, it’s very similar to the
Virginia bill that Madison remonstrated against – I always get that wrong – because that
bill originally provided that money would not necessarily just go to build religious houses
of worship but could go to seminaries of learning, sort of like voucher bills in a way.
Money can go to allegedly secular or religious methods.

        But what Madison said very clearly is that to compel someone to support a
church, to build the church with taxpayer dollars, violates the freedom of conscience,
which is clearly violated by this proposal. But second, what this kind of proposal does is
to create an understandable perception of government support and indeed favoritism for
religion and particular religions.

       What we’re talking about here is direct grants. We’re not talking about vouchers
where at least in theory the money goes to parents and they decide where to go. The
money goes directly to the Old North Church, directly to the Seattle Hebrew Academy,
and indeed can be used for a broad variety of purposes that support religion, and it’s a
highly selective judgment, particularly, for example, historic preservation.

        Only a small percentage of those who apply for historic preservation grants get
them, and indeed, the very religious character of those buildings is going to inevitably be
an important part of why it is they wind up getting selected. Why is that? Because we all
know when people settle in new communities, what’s one of the first things they build?
They build a church or a synagogue or another house of worship, and they’re going to
take care to maintain it. And so therefore we’re going to find a lot of buildings in the
1700s, in the 1800s that have enormous significance to people in those areas that will,
under this new policy, be able to apply for historic preservation grants. And it will be
inevitable that there will be concerns about favoritism: which organization gets, which
doesn’t; religions that are more recent to American shores are not likely to qualify for
those kinds of grants, and the result, again, is an inevitable perception of direct
government support for religion.

       If you’re concerned about that, take for example a recent instance. There is a
piece of government-owned property in North Liberty, Iowa. There is an attempt there to
build a religious-oriented camp. Guess who wants to build it? It’s not USY, a Jewish
organization; it’s not a Christian youth organization; instead, it is the Muslim Youth
Camps of America who want to, on federal land, build a Muslim prayer tower and year-
round convention center that would be rented out of season. That’s the specter of what
we have to talk about if this kind of proposal continues.




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      But my third concern is one that relates in a much more selfish way, frankly,
some might say, to the concerns of religion itself, and that is that inevitably with
government subsidy comes government regulation of religion.

        Look at the grant to the Old North Church itself. It has a 50-year covenant – a 50-
year covenant that the church must maintain its historic integrity. Now, what does that
mean? What if the church decides it needs to renovate its chapel? What if somebody
thinks that that will disturb the historic integrity of the Old North Church? The specter
that you have is literally potential litigation between a church and the government as to
whether or not it is following the regulation that has gone with it.

        Now, you might say, well, the Old North Church did that voluntarily. They’ve
got to pay their money; they get their money, they take their chances. You could make
that argument but, in fact, if it is accepted, that money can flow to historic preservation
sites that are in fact religious, it removes a very powerful argument that many have tried
to argue: that government should not be able to regulate, in a negative way, religious
properties for historic preservation reasons.

         Let me turn to an actual example from more than 10 years ago. St.
Bartholomew’s Church in New York in the ‘80s wanted to do some pretty significant
renovations to make it more possible for the church to function, to do its job as a religious
institution. There was a little problem -- the church had been designated as an historic
landmark. New York State said, "you can’t do this; we won’t let you". You don’t get
any money but we’re not going to let you change this because you’re subject to our
regulation, and it is after all a neutral regulation applying to religious and non-religious
historic landmarks alike. Therefore, you don’t get to make your renovations. And in
fact, thanks to a shift in the Supreme Court’s version of the Free Exercise Clause, that
was in fact upheld by the Second Circuit Court of Appeals.

        Now, frankly, a lot of places have made some exceptions to historic preservation
laws in order to accommodate religious institutions. Indeed, Congress passed the
Religious Land Use and Institutionalized Persons Act to try to provide more protection
for religious organizations.

         But there’s a much stronger argument that those kinds of accommodations are
impermissible, or shouldn’t happen at all, if in fact government money is going to flow as
well. If government money flows, government regulation inevitably flows, and the result
of that, I would submit, is bad for religion as well as for government.

        Now, this brings me to a point that doesn’t relate quite directly to the bricks-and-
mortar issue but is a very important one that each of our speakers have talked about, the
issue of what do we really mean by a level playing field?

       Mr. Kuo suggests that the Bush administration is simply carrying out the policies
under Charitable Choice, but as Congressman Edwards pointed out, there are two very
important differences. First of all, prior to the Bush administration, money did not go to


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                                               Panel Discussion Transcript, June 17, 2003

pervasively sectarian organizations – a term, by the way, which has been rejected only by
four justices of the Supreme Court, not a majority the way I count them – because of the
extent to which those organizations would use government money inextricably to
promote religion. It’s one thing to give a faith-based organization money to do a drug
treatment program; it’s something else to give it to a faith-based organization that
inherently contends that the way to get off of drugs is to find Jesus or Allah or whoever.
That would be an impermissible use of government money, something the Bush
administration has tried to reverse.

        But second, as Congressman Edwards pointed out, religious organizations, if
they’re going to take government money on an equal basis, shouldn’t get special
exemptions. Now, Becky tries to deal with this by saying, well, all I want are mission-
based exceptions. Well, mission-based exceptions are fine. A church can certainly
agree, on an ideological basis, not to hire someone who believes in abortion or who
believes in environmentalism or whatever, but to give them a special privilege that no
other organization has – to say, you can’t hire somebody based on their religion, to say,
you can post a sign that says, no Jews or Catholics allowed, is a very, very different kind
of situation. And that, I submit, is what neutrality really is all about in this context.

        When we talk about neutrality we talk about what a professor friend of mine once
called “substantive neutrality” with respect to government and religion. What that means
is that sometimes it may appear that government is disfavoring religion when religion
doesn’t get a grant. Sometimes it may appear that government is favoring religion when
religion can be exempted from an historic preservation statute, for example, that applies
to non-religious organizations. But in both instances, the net result is to make sure that
when it comes to faith, government will get out of the way. That’s what we want, for
government to get out of the way of faith. The problem is, under this Administration, it’s
not a question of the government getting away, it’s the government getting behind and
pushing. And as one of my legal interns pointed out to me today, the political
implications of that are about as subtle as President Bush’s landing on an aircraft carrier.

       Thank you very much.

       (Applause)

         ROBERT TUTTLE: First off, I wanted to thank the previous speakers. It’s good
to hear other people talking. Chip and I talk to each other for more hours a day than we
should, and it’s nice to get some of the passion of this, rather than where we tend to fall,
sort of in the middle ground.

        I want to first start on the constitutional basis that will lead through my discussion
of the bricks-and-mortar rules.

        Two things I think are clear in constitutional law. First, the secular purpose of a
government program and the religion-neutral classification eligibility are rarely, if ever,
constitutionally sufficient conditions under the Establishment Clause. There remains, in



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most cases, a requirement that government not directly fund specifically religious
activity. In other words, there has to be some line between what is a religious program
and what is a secular program.

        The second thing, the need for that line does not justify the exclusion of religious
organizations from participation in government programs. There’s got to be a line, but
the line is not drawn at pervasively sectarian institutions. Elliot says there are only four
votes. I’m not sure the fifth one makes that much difference on this one because it’s
likely to be the same practical result. So in other words, we’re going to have to draw this
line. The question is always going to be, first, where, and second, and I think more
importantly, how we draw the line.

      Where do we draw the line on religious activity? This is more easily said than
done. We have to think about what religious activity means.

        The Bush administration over the last six months has given us this phrase
“inherently religious activity” as a description of the impermissible object of government
funding. As Chip and I have argued, that’s not correct. Inherently religious activities are
the things that are always impermissible objects of government funding.

        The constitutional line is slightly different. It means religious activity, even if it is
mingled up with a secular program. In other words, you may think that substance abuse
treatment is a lawful object of the government to fund. It does fund it all the time, so it is
not inherently religious; it’s something that is a permissible secular object. However, if
that substance abuse treatment is done in religiously thick, rich ways, it is equally a
religious activity and thus not an object of direct government funding. So the line has to
be drawn differently than at least we’ve seen in these proposals.

        But for us today, the more important and complicated question is how is that line
going to be maintained? The government cannot simply ask for an affidavit: “tell us that
you have not used the money for impermissible purposes.” That’s not acceptable as a
measure of government stewardship, but more importantly, it is not constitutionally
sufficient under the Establishment Clause. Government has to ensure that there are
mechanisms in place to protect against diversion. Justice O’Connor’s concurring opinion
in Mitchell v. Helms I think is very clear about this and remains the law of the land.

        So how, then, do we make sure that this line is maintained? The rules proposed
by Housing and Urban Development propose to establish a line based on time.
Government can fund religiously owned properties so long as the funding is for the extent
to which the funded spaces are used for religious activities. If you use the space 30
percent of the week for secular activities, the government can provide 30 percent of the
funding. It certainly is a line; it draws it in the right place, at least if we revise the
definition of religious activity used by the Bush administration here. But does it draw it
in a way that can be maintained? How are you going to assure yourself that the 30
percent/70 percent split is intact? Well, the resolution by affidavit is not going to be



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acceptable. I don’t know how they propose to protect it, but certainly that’s one that
might be attractive to the government. It’s not likely to be constitutionally sufficient.

        So, how then? It has to involve some mechanism for monitoring. What does the
monitoring look like? Is it going to have to be someone who is sitting there with a
stopwatch? It seems like an extreme example, but you’re really going to have to figure
out a way to monitor this. Are we going to trust a particular government agent to know
how to draw the line between activities that may blur back and forth from secular to
religious?

        Contrast this line drawing with the use of computers or other kinds of equipment
provided by government funds in Mitchell against Helms. What was the line on
diversion there? The funded equipment could never be used for religious purposes, not it
can be used in extent of the money that the schools contributed; the schools contributed
20 percent of the cost of the computers. That’s not the line they drew. The line is always
or never, right? It’s always free to be used if it’s bought with a religious organization’s
money, never free to be used for religious purposes if it’s bought with government
money. That suggests to us that the line on the HUD regulations shouldn’t be drawn in
terms of the use of the space at all. That’s consistent with Tilton, that’s consistent with
the 1970s rules, but more importantly, it’s consistent with Justice O’Connor’s
understanding of no diversion, which, again, remains the law of the land.

        Do the FEMA rules propose any line? The answer is no. FEMA money can be
used for any purpose consistent with those under both its statute and its implementing
regulations.

        Are there any contexts in which the government may subsidize religious
activities? Here I’m going to the not-one-dime argument that both Congressman
Edwards and Elliott Mincberg have raised.

        Justice O’Connor’s concurring opinion last summer in Zelman v. Simmons-Harris
does a lovely job of laying out the manifold ways that government finances religious
activity, either indirectly through voucher systems or through tax exemptions, which on
anybody’s accounting now are kind of expenditures; something as simple as providing
police, fire protection, sewage services, trash, other things that others enjoy on a purely
neutral basis, neutral in the sense of we don’t care what activity you’re involved in, you
just happen to own property in this locality.

        FEMA comes close to that, although perhaps not all the way. We have to look at
the categories much more closely that are funded: community service organizations,
community activities. In some circumstances, religious organizations could equally
apply. Others, if they’re not generally open and available to the public, may not, but that
seems to me to be the correct question under FEMA: is this a category that is not drawn
specifically with respect to the substance of the activities going on but is, like police and
fire, available to everyone?




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New Federal Policies on Grants for Building Aid for Houses of Worship

       So then we come to the most difficult question of this, which really is historic
preservation. The money is not generally available; at least in part FEMA might be your
police and fire protection, nor is there a line drawn, like we could hope to be drawn in
HUD, that would segregate out from religious and non-religious activities.

        It seems that it would be simpler to ban funding outright, but that does, I think,
deny the real importance, for non-religious reasons, of these historic religious properties
as part of the tourism, as David Kuo said so much about Boston and North Church being
part of that. These buildings are an important part of the cityscape. To allow them to
deteriorate doesn’t necessarily deprive the city of the religious resource, but of the
architectural cultural resource.

        Chip and I drew a line between interiors and exteriors, in the article that we
wrote-- which is available on The Roundtable’s website -- in Boston College’s Law
Review. We draw the line there for a couple of reasons: first, because the community’s
interest is obviously much stronger with respect to the exterior. That’s the place that the
church has in the urban – or otherwise in the city’s landscape. But more importantly,
from the monitoring perspective, what’s it going to take to ensure that the exterior of the
property is maintained in historically significant terms? Well, there are pretty well
agreed upon guidelines among historic preservation architects and others about what
counts as the historic fabric of the structure. The congregation can agree to maintain the
exterior fabric. Are there going to be religious resonances of that? Yes. But the interior
has a very different kind of feel to it.

        Imagine something that is not a hypothetical but is a true case, the Society of
Jesus, also in Massachusetts. A church owned by a Jesuit community had a beautiful
altarpiece. They wanted – in accordance with their understanding of Vatican II – to move
the altar away from the wall. That would dismantle that part of this historic altarpiece.
The Massachusetts Historic Preservation Commission said you cannot do that because
you have a historic structure; you have a historic interior. The court rightly said, even if
these things, these historic preservation regulations, are neutral, this still seems an
especial burden on religious practice. You’re saying that this congregation cannot enact
its new understanding – or its renewed understanding of the Eucharist.

        Interiors require the kind of interaction that we’re worried about in the HUD
context: substantive, ongoing discussions about what is the proper exercise of the
religious community. And for that reason we seem quite suspicious of the likelihood of
maintaining a line with respect to the interiors.

       Chip is telling me I’m out of time. We’ll have, I think, plenty more time for
discussion. Thank you.

       (Applause)




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                                               Panel Discussion Transcript, June 17, 2003



Questions and Answers
       MR. LUPU: I want to thank all the panelists for their fine remarks. I see that
Congressman Edwards, as he told us before the program, had to go up to Capitol Hill to
take care of some urgent business for which he’s responsible. I do believe Denise
Edwards, who is no relation I believe, and his counsel – maybe she’s escorting him to the
elevator or something – I think she may be back to take questions on his behalf. Ms.
Edwards – anyway, if someone has a question that would have been aimed at
Congressman Edwards, and if Denise returns, she would be the target.

        Let me just say a word or two about where we now stand in light of this
conversation. As I sort of feared and expected, it’s very hard to confine a conversation
about the recent reversal of policy about grants for bricks and mortar to that issue alone.
It’s part of the faith-based initiative. It’s an important aspect. It’s an urgent aspect but
it’s only one aspect. So we did hear from Mr. Kuo and from Congressman Edwards to
some considerable extent about hiring discrimination and some other issues as well.

         I’d at least for starters like to confine the questions to the bricks-and-mortar
matters, but if people want to ask questions about other matters related to the faith based
initiative, it seems to me that that would be appropriate. It’s been put on the table by
several of the speakers.

        So we are looking for questions for any of our panelists about – let’s start with the
bricks-and-mortar issues. I see Dr. Nathan has his hand up. A microphone will come
around to you if you’re a questioner. Please identify yourself and your affiliation if you’d
like for purposes of the transcript we’re keeping of the meeting.

        DR. NATHAN: Thank you very much. I’m Dick Nathan from the Rockefeller
Institute. And that was a terrific panel. I’d like to say that it really was very important
with many cogent statements on this subject, so I thank you.

        I’d like to ask Elliot and Congressman Edwards’ assistant, when she comes back,
to speak specifically to this point that Bob mentioned, which is interior versus exterior.
And I know that it gets involved in whether the windows are stained glass windows and
religious windows, but I was told that for the Old North Church they’re not stained glass
windows, and funds are going to be used for the exterior, and that that was important to
the rationale. And I would like to hear particularly Elliot and Congressman Edwards’
assistant speak to that.

         MR. MINCBERG: I haven’t yet been able to get a copy of the actual grant –
hopefully I will eventually – to Old North Church, but according to the opinion I think
that that distinction between exterior and interior is not really totally present in the Old
North Church grant, as I understand it. Part of it is for the ventilation system, which is
certainly inside the church, and other aspects of restoration or preservation inside the
church.


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        I think it’s an interesting distinction. I think it is certainly true that when you get
into government being involved in providing grants for the interior of a church or other
religious institutions, you run into more problems. But I guess I wouldn’t draw the line
quite that way.

         As was pointed out in the 1995 opinion by the Office of Legal Counsel, exteriors
have religious significance too. Sometimes the shape of a church or another religious
institution from the outside has actual religious significance to faith as well. I would
agree that the interior is more problematic, but I guess I don’t see a major distinction. If
in fact what the grant will do is to permit the institution to function as a church or other
religious institution, whether the renovations or restoration is on the inside or the outside,
then in essence, to use Mr. Kuo’s term, what is happening is that preaching is going on at
least in part on Uncle Sam’s dollar.

        DENISE EDWARDS: I work for Congressman Edwards and he is very
passionate about this issue and we work very closely on this one, but I don’t know if I
can answer this question. And so I do want to let everybody know, if you have questions,
he is around in the afternoon and this is an issue that he will gladly sit down and discuss.
Because we’ve dealt on the employment discrimination issue and some of the other
issues more clearly, and this is a little bit newer with regards to the exterior or the
interior. I couldn’t accurately describe what he would feel about that, so I don’t feel
comfortable saying that.

      MR. LUPU: Just tell us briefly how we might address this question to
Congressman Edwards if we wanted to later in the day. How could we communicate it to
him?

        MS. EDWARDS: I would point-blank lay it out: Congressman, what do you
think? Is there a difference between funding – or providing a grant like, say, the example
of the Old North Church – providing a grant to preserve a historic landmark, and how do
you relate that or distinguish that or work with that to make it not necessarily fund the
advancement of a religion, since this is a working church? He would never want to make
somebody feel like they couldn’t express their religion, and that’s an important thing to
him, that he feels like government can work together with that but without directly
funding a church.

        And so that is a big issue for him, directly funding a church, because he’s very
nervous, and I guess he more than others sometimes – he always says the ugliest fights in
Congress are what he’s about to go deal with in appropriations, and to now throw
churches in the mix and religion in the mix in fighting for public dollars, it’s something
that he wants to protect the church and religion – all religions and not just one particular
religion over another. And that’s why he’s very cautious about moving forward with
these things, and so he likes this open debate and he likes to be able to discuss it with
everyone and hear opinions that are like his or not like his. He certainly does not believe
that people have to agree with him, but he’s just glad people are talking about it.


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        MR. LUPU: Thank you, Denise.

        Professor Tuttle wanted to add something on this question.

        MR. TUTTLE: Yeah, the line between interiors and exteriors, as far as I know, is
purely an invention that Chip and I had on this, and so we’re not claiming any greater
authority. We surveyed all 50 states that had historic preservation grants, and nobody
exactly used this one, although a couple of them come close. Arizona, I believe, is one
that came close.

         States draw these lines all over the place. Some prohibit funding absolutely. A
number say, sure. Some say funding of only those things that are aesthetic. Some say
only those things that are structural. So it’s very hard to figure out exactly what the
existing line is. But we chose interior-exterior, partly because of the entanglement things
that I started to discuss.

        But I want to respond a little bit to Elliot’s two concerns: first, the exteriors have
religious significance. Religious significance to whom? Is that the purpose of the
funding?

        Lots and lots of things have religious significance to people. The clothes that
people wear have religious significance to them. The way that they talk in public may
have religious significance. The subjective religious experience either to a religious
individual or to a religious community cannot be the measure of a government’s
prohibition. We’ve gotten into some of that problem in public schools: what kinds of
things that teachers may say, even if they are not confessionally religious, may have some
significance to either the teacher or to a student.

        So the sort of subjective religious experience of the – or the subjective experience
of the religious quality of a building can’t really be the reason it’s excluded. It has to be
something about what is not an appropriate object of government funding. And for that,
Chip and I go back to a much more basic, and I think narrower, understanding of the
Establishment Clause. Government is prohibited from involving itself in a substantive
way in the exercise of religious worship or activity.

        The government’s going to interact with religious organizations left and right.
The government subsidizes, in many ways, as I described earlier, what goes on in
religious communities.

        But the question is narrower. It’s the direct object of government support for
these religious activities, and since the exterior of the structure also participates in the life
of the community in a meaningful way, we thought that was a useful line to draw.

        MR. LUPU: Other questions? Yes, in the front.




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New Federal Policies on Grants for Building Aid for Houses of Worship

         UNIDENTIFIED SPEAKER: Let me also ask a follow up on something he said,
but what about historical preservation of things in the South, such as Robert E. Lee’s
home, government funds going to preserve racist establishments that can be seen by some
people who are still of that mind as a shrine and a place for them to go for inspiration,
and most recently the confederate flag flying over the South Carolina State Capital? And
as a little glib at you, that could be seen as some about as subtle as Hillary Clinton saying
that the one thing she regrets is the economy has gone down from what her husband left it
as.

        So how do you distinguish between religious preservation and support and that for
historic preservation?

       MR. MINCBERG: I’m not sure if that’s to me but I’ll be happy to start.

       UNIDENTIFIED SPEAKER: It’s to either.

        MR. MINCBERG: Okay. I mean, I think you raise a serious concern, a different
one, about the use of historic preservation funds that, frankly, I think ought to be taken
into account. There isn’t a constitutional prohibition that I can think of against funding
Robert E. Lee’s boyhood home, or something of that nature, but I could certainly see a lot
of very good policy reasons why that would be very troubling to a lot of people. And I
think there’s a very good argument that that ought to be taken into account in historic
preservation. I don’t know enough about historic preservation issues politically to know
how that works, whether it’s factored in, et cetera.

         But I think the concern that I have, looking at it from the perspective of religious
institutions, is exactly that kind of thing could also happen. What about the first church
where the Ku Klux Klan started to gather in Mississippi, just to take a hypothetical
example, or something like that? That’s one where you would mix those two concerns,
both the religious and the non-religious policy concern. And I think partly because
historic preservation grants are so subjective and are so selective – it’s not like police and
fire, that everybody gets it – that I think the dangers of providing selective government
subsidies in that way go up significantly, that we’re concerned about it in the religious
context, and I think you’re right to be concerned about it in other contexts as well.

       MR. LUPU: Yes, sir.

        ROB MARUS: I’m Rob Marus from Associated Baptist Press, and I guess I have
two questions, and the first is a brick-and-mortar question, mainly for Bob and Chip but
for anyone else who wants to answer, and the second is a broader question about the
constitutional context of the entire debate here.

        The first question is the line, defining the line and who gets to define the line. A
different kind of example – a different line in interior versus exterior: When I did the
story on the Old North Church grant being announced I interviewed the rector of the
church. The congregation that meets in the Old North Church has a different name; it’s


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                                                Panel Discussion Transcript, June 17, 2003

like the Chapel of St. Peter, or something like that. And the rector said, “Well, listen, I’m
an Episcopalian; I’m the wild-eyed fundamentalist. We believe in the separation of
church and state. But the way I justify this to myself is, well, this is a public
accommodation. Thousands of people visit our church every year but we only have about
150 members, and this is restoring our windows so the public can continue to enjoy and
understand the historic context of our church. If the government were trying to pay for
restoring our altar or our pulpit, then that would clearly be a constitutional violation to
me.”

        And the question that raises for me is, okay, well, what if a different structure, a
church or synagogue has, for instance, the National Cathedral here in Washington has a
very architecturally and historically significant pulpit. It’s also the same kind of public
accommodation the Old North Church is: thousands of tourists visit it every year. What
if there was a government grant one day to restore the pulpit. Would that be directly
funding religion and would that be impermissible, whereas the windows are permissible?
That’s the first question.

        And the second question I would address to anyone, particularly Becky and
David, regarding the whole question of neutrality versus special treatment of religion. I
would like to hear you all talk more about why neutrality is better than treating religion as
special, which is the kind of philosophy that Elliott and Congressman Edwards both
pointed out, that they think the first 16 words of the First Amendment elevate religion to
a special status, and that sometimes looks like discrimination against religion but it
sometimes looks like special dispensation for religion. And that’s vital to preserve
religious liberty, to treat it differently than any other kind of right or responsibility under
the Constitution.

        MR. TUTTLE: Yeah, as to the first question, Old North is actually a very odd
example for the conversation that we’re having today because in fact Old North is not
owned by the congregation that worships in it; it’s owned by a private foundation. It’s a
trust that maintains the property, keeps it open to the public, and indeed is not a religious
foundation. That would be eligible for funding in Virginia in the absence of a particular
federal program – Virginia, with one of the more separationist understandings of
financing for religious properties.

        Why is that? Well, because this non-religious entity can easily make enforceable
agreements with the government about the structure of the interior. They don’t hold it for
religious purposes. They can agree that the altar will never be changed. They have no
religious grounds for objecting to it. The congregation worshipping in there is simply a
tenant. Tenants have some rights but not rights to dictate the structure in which they
worship. And so the Old North really is not a great example of this because it is an
example of a particular kind of relationship that would have been acceptable well before
any of the recent changes either in constitutional law or in Administration policy.

       And I think that a similar answer goes to the National Cathedral because that is
not a private foundation in the same way. It’s not open by government decree or by a



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New Federal Policies on Grants for Building Aid for Houses of Worship

contract between the government and the non-religious owner, but is indeed a
worshipping congregation seven days a week, 365 days of the year. Any agreement
between that organization and the government that allows the government to control the
shape of its interior seems to me a poster child for impermissible entanglement between
government and religion. It’s not something that the church can waive as it can
ordinarily waive free exercise rights. It’s an Establishment Clause concern.

        MR. LUPU: And let me just add one word to that then we’ll turn to the other
question about neutrality and separation. As Bob suggested earlier, states have a whole
wide variety of policies on these matters, and if we made any contribution in this article,
in addition, or perhaps without regard to this interior/exterior distinction – we have had
email exchanges with 30 or 40 state historic preservation directors about what each of
them does with respect to the financing of houses of worship, and some of them, for
example, say, well, we don’t finance the repair or preservation of steeples. You know,
there are crosses or other religious symbols on them. Now, that is the exterior and, if
you’re in Vermont and you’ve got a pretty steeple on a pretty white church, that is
something that people come to see and care about for historic reasons.

        On the other hand, it is a matter of the steeple and what’s on it, and the symbol
that’s on it is a matter of religious significance, and so you have some state historical
commission director saying, however historically important the steeple is, that’s
something that ought to be left in private hands in terms of whether it’s painted or it’s not
or it’s made bigger or smaller or taken down, whatever they choose to do. There’s a wide
variety among the states on those kinds of distinctions and those kinds of matters.

        Now, the other question I believe was to Mr. Kuo and to Becky Rees about
special treatment for religion under the religion clauses versus nondiscrimination or level
or even-handed treatment. So I’ll let either of you take that one next.

        MR. KUO: Well, tell you what, let me try and do a broader context and then I’ll
let Becky jump in and do the substance. Sometimes I fear when this term “special” is
used it’s sort of like “special needs,” or it’s kind of like a wonderful and special place that
we’re going to put on an ornamental chest somewhere. I mean, it is a nice term but what
does it really mean: religion has a special place and therefore we should do something
with it in particular? I mean, I just sort of feel like that term, special, is something of a
derogatory term in some ways.

        Obviously religion has a special place in American history. It is a special part of
everybody’s lives. But “special” should not mean that it is put separate and apart, never
to be touched, never to be considered, never to be involved, never to be engaged. And
from our perspective, that’s the concern with that term and that way of thinking about it.

       MS. REES: I think you raise a really good question because there is considerable
debate about what the word neutrality actually means, which is why I had that last section
in my remarks about how the institutional separation of church and state that the
Constitution so wisely – or that is so wisely in the Bill of Rights doesn’t mean the


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                                               Panel Discussion Transcript, June 17, 2003

separation of all things religious from all things political. I’m trying to think what some
of the best way is to explain this.

        We talked about how one of the important things about the First Amendment is
that it prevents the government both from giving incentives or deterrents to religious
expression. For example, look at the cases in which there are religious groups that want
to meet in public schools on an equal basis to everybody else. In those cases the courts
have found that religion should be treated the same way as other activities, for example,
the Boy Scouts who meet there and things like that.

       On the other side you have the cases in which religion is asking for special
treatment. For example, several years ago we handled a case for some Muslim policemen
who had been told that they had to shave their beards because of the police regulations.
And the court actually agreed with us in saying, no, they have a religious reason for
having their beards and they deserve special treatment. So there is that sort of tension.

        One of the ways that this has been defined is through the phrase “substantive
neutrality.” I think Doug Laycock has been one of the people who has written on that a
lot; you look and see whether what the government’s doing is going to give an incentive
or a deterrent. So in the case of the equal access cases, if the government treated religion
as special or different and said, you can’t be in the public schools, that would be an actual
deterrent to religion. On the other hand, you don’t create special incentives for religion
either.

        So there’s always that fine line as there obviously is in the case of a lot of
constitutional questions. I hope that’s helpful.

       MR. LUPU: Mr. Kuo told me that he would have to leave at five of 11:00.
We’re supposed to go until 11:00, and we shall if there are questions, but because he has
to leave, actually the moderator has a question that he wanted to address to Mr. Kuo,
among others, so I’m going to ask the next question myself.

        There was discussion during the panel about how many votes there are in the
Supreme Court to sustain what I call the “full neutrality” position, the idea that our
religious institutions are to be treated just like all others for purposes of government
benefits. And I think most of us agree there are four votes for that position, and there’s a
question about Justice O’Connor, and perhaps Justice Breyer in some circumstances; the
extent to which they would move toward that position. They haven’t moved there all the
way.

       Everybody in this town is talking about personnel replacements on the Supreme
Court: perhaps the chief justice will retire soon, he’s already in this neutrality camp;
perhaps Justice O’Connor will retire sometime soon; she’s one who’s not all the way in
the neutrality camp as the very important swing vote on the Supreme Court.




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        In the White House, in Congress, in places where this will get resolved in the next
three months, six months, 12 months, it will happen then -- are the issues we’re talking
about today a matter of priority, Mr. Kuo? Let’s start with you. Is this right up on the
table when the president and the president’s people, including you, think about
replacements for the chief justice, replacements for other justices? Is this issue,
separationism versus neutrality as a basic paradigm of religion clause adjudication, is this
high on the list when those matters will be decided?

       MR. KUO: Well, I really do appreciate that question. I want to use this
opportunity as a public forum to formally withdraw my name from consideration for the
Supreme Court. (Laughter) I know it’s been rampant in speculation.

        My answer to the question is I don’t know. I mean, the question is if Rehnquist or
O’Connor retire and are replaced, will First Amendment considerations be a
consideration for their replacement? My answer is I have no idea. It’s not something
that the Faith-Based Office is intimately involved in. I don’t think we’re going to get a
routing sheet that goes along saying, before it’s announced, do you check off on these
guys?

       It’s a great question, and it will certainly be a great and riveting moment in the
Judiciary Committee when the various senators ask that question. And I think that
because of this initiative and because of all the debate and the discussion, I think it will
be elevated, because it’s at the front of everybody’s mind. And I look forward to hearing
that whenever it occurs.

       MR. LUPU: Are there others on the panel who want to respond to this question?

         MR. MINCBERG: If President Bush fulfills the pledges he’s made, both before
and after the election, there’s no question that that will be among the criteria because he
has pledged to look for Supreme Court justices in the mold of Scalia and Thomas, who
are at the leading edge of this movement that Chip has talked about.

        Now, there has been an effort, sometimes actually with a straight face, for
administration officials to say, oh, judicial philosophy has nothing to do with our
selections, and if you believe that I have a bridge I’d like to sell you, because if you look
at some of the folks that have been selected for the Court of Appeals you don’t find a mix
of people like Larry Tribe and Erwin Chemerinsky, along with people like Mike
McConnell and Jeff Sutton -- the latter being nominees who I think very strongly would
agree with the plurality view were they, for example, to be elevated from their current
positions on the Court of Appeals to the Supreme Court.

      I do think that this is among many other issues that will be very important for the
American public to think about very carefully when it comes to replacements for
Supreme Court justices, which will surely occur; if not this year, soon.

       MR. LUPU: I saw a hand. Yes?


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       AUTUMN RIERSON: Thank you. I’m Autumn Rierson. I’m legal counsel with
the National Trust for Historic Preservation. As you all know, we worked really hard for
decades to have this policy changed, so we’re delighted that it’s taken place.

       I have a quick, quick comment, if you’ll indulge me, and then a question for
David. The comment really, first of all, addresses the Mitchell v. Helms protective
mechanisms that we’ve talked about a couple of times, but no one has really gone into
much detail about the Save America’s Treasures program, the SAT program, and grants
in general from the federal government. There are so many protective mechanisms there.

        First of all, a property has to be nationally significant. It has to be a national
historic landmark or on the National Register as a nationally significant property. And
whereas some folks have referred to this as subjective criteria, they’re actually fairly
objective criteria in order to meet those standards. And that’s in addition to the auditing
and all those other requirements that are necessary for any federal government grant.

        That’s my comment. My question is really to David about the OLC opinion in
that we understood it to apply to the HPF fund, the Historic Preservation Fund, and all
National Historic Preservation Act grants, but understand from Interior that it only
applies to SAT grants. Can you comment on that?

       MR. KUO: I tell you, I don’t know the answer to that.

       MS. RIERSON: Okay. That’s a good answer. SAT is the Save America’s
Treasures fund, which is the mechanism through which the Old North Church got its
$317,000.

       MR. MINCBERG: I have a question in return if I could ask. I realize that there
are probably a very select number of folks who apply for SAT grants, but of those that
apply, what percentage ordinarily get them?

       MS. RIERSON: I don’t know the answer to that. The SAT program is set up
with $30 million that is congressionally appropriated and then $30 million that goes
through the grant-making process. It’s not a lot of money in the grand scheme.

       MR. MINCBERG: Well, then how about the broader program that you were just
asking Mr. Kuo about?

       MS. RIERSON: The HPF fund?

       MR. MINCBERG: Yeah, what percentage of people who apply get the funds?

       MS. RIERSON: I don’t know the answer to that.

       MR MINCBERG: The HPF fund goes through states, right?



The Roundtable on Religion and Social Welfare Policy                                     33
New Federal Policies on Grants for Building Aid for Houses of Worship



        MS. RIERSON: It’s delegated through the states, that’s correct, and it’s not a big
boat of money like we would wish it were.

       MR. MINCBERG: But certainly it isn’t everybody that applies that gets them.

       MS. RIERSON: Certainly not. It’s competitively based.

       MR. TUTTLE: Yeah, actually, if I can add just about a couple of things on that
one.

        First, on Elliot’s question about selectivity – and I think this is part of Ms.
Rierson’s response – some of the money is already earmarked for specific projects when
it comes out of Congress, right? And so, one of the concerns that it seems to me folks in
Elliott’s camp would have is that these are not the architects or historic preservation
experts making these, but these are congressional earmarks that may actually have the
worst of our concerns about favoritism. So that half of the money I think is more
problematic than the half administered by Interior itself.

        So I think that the Interior’s structure for dealing with these is likely to have less
of the concerns that Chip and I would ordinarily have in terms of making sure that money
is used appropriately. It doesn’t avoid the entanglement problem if the money is used for
things like the altarpiece or some other sort of historically significant part of the interior
that’s organically bound up with worship because the congregation may agree to use it,
but what happens if the congregation changes in 20 years and they want to change how
it’s been used? That’s the question we’d have more problems with, not the extent to
which you can actually figure out where the lines are going to be drawn.

        The other part, which I didn’t know, that this was limited only to Save America’s
Treasures, because it doesn’t sound like that. It really does have the Historic Preservation
Fund -- and part of what we found when we went out and did a state survey is that all of
the states said first, well, the feds tell us that the money we get, to the extent we get any
money under the Historic Preservation Fund, cannot be used for religious properties.
And that was really the place where we don’t have as much of an idea about what
standards are imposed. So, equally, with the amount that’s directly allocated by
Congress, we would have concerns there about choosing favorites in terms of the state
processes.

       MR. LUPU: We have time for one more question.

        STEVEN MONSMA: I’m Steve Monsma from Pepperdine University, and I’d
like to shift to the question of FEMA grants because I was intrigued when Bob Tuttle
suggested that perhaps these disaster repair grants should be viewed as really being of the
same cloth as like police and fire protection. And I would just like to ask Bob if he could
comment a little bit more why he does not see a distinction, a principled distinction
between the two? And I suspect that Elliott Mincberg would see a distinction between the


34                                    The Roundtable on Religion and Social Welfare Policy
                                              Panel Discussion Transcript, June 17, 2003

two and maybe he could comment on why he would see a principled or bright line
between fire protection and grants for reconstruction following a disaster.

        MR. TUTTLE: I’ll answer first and then Elliott will tell me why I’m wrong, if
that’s okay? I’m not sure that they’re like police and fire protection, but if they are like
police and fire protection, then they are more likely to be constitutional. So the first
point is that I’m not sure they are the same, but that would be the place where you would
look for justification.

        Here are the reasons that I think they are more like police and fire protection
certainly than historic preservation grants. The money is given not for subjective criteria,
like is this a good place; is this something we really want to be supporting, but for
relatively objective criteria: was this damaged in this particular event? And like any
other insurance adjuster that goes out, you can have some understanding of what money
would be needed to repair it.

         There are always going to be problems at the margins of how much you would
pay, is that stained glass window really something that we need to restore, things like
that. But my understanding of FEMA grants is that they are not quite there. In fact,
businesses are not eligible – they’re eligible usually for low-interest loans. Private
residences ordinarily are not eligible; they’re eligible for low-interest and sometimes no-
interest loans but have to be repaid. It’s a class of community service structures or
structures of importance for the community: libraries, schools, some voluntary
association structures. If it’s defined broadly enough – and that’s the real question – if
that category is defined broadly enough it makes sense to include religious organizations
within them. If it is not defined very broadly then I think it is much more difficult to
justify their inclusion.

       MR. MINCBERG: And I do think that part of what’s just been said is one of the
reasons why I think there is a distinction. I think there are others as well.

        One of the reasons we provide police and fire protection for religious as well as
non-religious property is because there’s a public purpose there. A fire in a church can
spread to adjacent property. Someone who robs a synagogue can go on and commit
crimes elsewhere. But with respect to repairing from a natural disaster, it’s a much more
discreet purpose providing government money for the purpose of rebuilding the religious
building.

        And that’s the other aspect to it, which is that under the FEMA grants, for
example, that money can be used for anything. If the Seattle Hebrew Academy, which is
like most other Jewish day schools I know, has a chapel and has an arc, which are clearly
quintessentially religious structures and objects, the money can be used literally to
rebuild those, which is very, very different than police and fire protection.

       MS. REES: Can I just add one thing? I was looking just yesterday at the FEMA
opinion and I think this kind of addresses something that Elliott raises as a concern of his



The Roundtable on Religion and Social Welfare Policy                                      35
New Federal Policies on Grants for Building Aid for Houses of Worship

in the area of historic preservation grants, and that’s the percentage of the organizations
that actually get the grants. In the case of the Seattle Hebrew Academy I think there were
268 applicants and 267 of them actually got the grants.

       MR. MINCBERG: And that’s exactly right.

       MS. REES: So that argues in favor.

        MR. MINCBERG: And I think that Bob has done a very good job, and Chip,
pointing out the arguments pro and con. That is certainly a pro argument for that, but I
think the con on that is that the money can clearly be used for religious purposes, to build
a chapel for example at whatever the discretion is of the organization receiving the
money.




36                                   The Roundtable on Religion and Social Welfare Policy
                                             Panel Discussion Transcript, June 17, 2003



Closing
        DR. NATHAN: Let me say I think this was terrific. I learned a lot, and that’s my
best test of when it’s a good time to come and to participate, to be part of an event like
this.

        I want to thank the moderator. He did a terrific job. Anyone who begins with a
historical, deep and rich recounting of Madison’s remonstrance and Patrick Henry puts us
into the right frame of mind to bring this issue all the way up to the current exciting
moment, which the panelists did so well. I thank everyone who participated.

       (Applause)

       (END)




The Roundtable on Religion and Social Welfare Policy                                    37
The Roundtable on Religion and Social Welfare Policy
www.religionandsocialpolicy.org
(518) 443-5014




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                                    Institute of Government
                                  State University of New York
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                                       Albany, NY 12203

				
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