For other versions of this document, see http://wikileaks.org/wiki/CRS-RL31042 ------------------------------------------------------------------------------ Order Code RL31042 CRS Report for Congress Received through the CRS Web Charitable Choice: House-Passed Version of H.R. 7 Compared with Existing Charitable Choice Laws Updated December 17, 2002 Vee Burke Domestic Social Policy Division Congressional Research Service ~ The Library of Congress Charitable Choice: House-Passed Version of H.R. 7 Compared with Existing Charitable Choice Laws Summary This report provides a side-by-side comparison (Table 1) of two versions of the Charitable Choice Act of 2001 (Title II of H.R. 7) with three existing charitable choice laws. The table shows how the bill passed by the House on July 19, 2001, differs from the original version of H.R. 7, from the first charitable choice law (the 1996 welfare reform law, P.L. 104-193), and from two later laws that extended charitable choice rules to substance abuse treatment and prevention services under the Public Health Service Act (P.L. 106-310 and P.L. 106-554).1 As the table shows, the House bill2 refines somewhat the list of programs and activities to which H.R. 7 rules would apply. In a new provision, it authorizes the secretary of the department administering a covered program to require that assistance be disbursed to recipients as vouchers redeemable by religious and other providers chosen by individual beneficiaries. If a beneficiary objects to the religious character of a provider, the government must provide assistance of equal value from an accessible and alternate provider that is unobjectionable on religious grounds (the original bill required the government to offer assistance from an alternative provider, "including a nonreligious one"). The bill stipulates that if a religious organization receiving direct funds (through contract or agreement) for provision of services offers sectarian worship, instruction, or proselytization, the religious activity must be voluntary and offered separate from the program funded under the Charitable Choice Act. The bill retains the provision (which is in all charitable choice laws) allowing religious organizations to hire only co-religionists, but it deletes a provision in the original H.R. 7 measure that would have allowed a religious organization to require its employees to adhere to its religious practices. The House bill includes a new provision to earmark $50 million annually in Justice Department funds for training and technical assistance to small nongovernmental organizations in procedures relating to participation in federally funded benefit programs. Common to both versions of H.R. 7, but absent from any other charitable choice measure, is a declaration that funds received by a religious organization under the Act are not to be construed as aid to religious organizations or an endorsement of religion. The table shows that over time charitable choice legislation has grown longer and more detailed, as sponsors have sought to draft language to meet disparate concerns that charitable choice might weaken the religious character of participating organizations, impair the religious freedom of beneficiaries, and erode the wall separating church and state. 1 A fourth current charitable choice law is Title II of 105-285, which applies its charitable choice rules to any program carried out under the Community Services Block Grant program. These provisions are shown in Table 1 of CRS Report RL31030. 2 The House-passed version of Title II is the same as that approved on June 28, 2001, by the House Judiciary Committee. Contents Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Major Arguments of Supporters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Major Arguments of Opponents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Short Title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Purposes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Programs Covered . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Inclusion of Religious Organizations as Nongovern-mental Providers . . . . 8 Requirement for Consistency with the First Amendment to the Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Prohibition on Discrimination Against Religious Organizations . . . . . . . . 10 Funds Not Construed to Be Aid to Religious Organizations . . . . . . . . . . . . 11 Funds Not Construed to Be Endorsement of Religion . . . . . . . . . . . . . . . . . 12 Religious Character and Independence . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Employment Practices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Application of Other Laws Forbidding Discrimination . . . . . . . . . . . . . . . . 15 Rights of Beneficiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Nondiscrimination Against Beneficiaries . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Limitation on Use of Funds for Sectarian Activities . . . . . . . . . . . . . . . . . . 19 Authority to Require Use of Vouchers and Certificates . . . . . . . . . . . . . . . 20 Fiscal Accountability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Effect on State and Local Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Treatment of Intermediate Contractors/Grantors (Nongovernmental Organizations Acting under Agreement with a Government Entity) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Technical Assistance for Small Nongovernmental Organizations . . . . . . . . 24 Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Preemption of Other Law? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 List of Tables Table 1. Charitable Choice: House-Passed H.R. 7 Compared with Three Existing Charitable Choice Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Charitable Choice: House-Passed Version of H.R. 7 Compared with Existing Charitable Choice Laws Background Charitable choice is a set of provisions in law intended to allow religious organizations to provide federally funded services from specifically named programs on the same basis as any other nongovernmental provider without impairing the religious character of the organizations or the religious freedom of recipients. Charitable choice does not contain special funding for faith-based organizations and it applies only to programs designated by Congress. The 1996 welfare reform law (P.L. 104-193) put the first charitable choice language into federal law, applying it to the block grant program of Temporary Assistance for Needy Families (TANF).3 In 1998, Congress extended charitable choice rules to grants under the Community Services Block Grant Act (P.L. 105-285) and, in 2000, to grants for prevention and treatment of substance abuse under the Public Health Service Act (P.L. 106-310 and P.L. 106-554). The 2000 Republican platform proposed to apply charitable choice to all federal social service programs. In their 2000 platform, Democrats said they believed that faith-based programs should augment -- not replace -- government programs. "In every instance where this Administration sees a responsibility to help people, it will look to faith-based organizations, charities, and groups that have shown the ability to change lives," said the FY2002 budget press release of the Department of Health and Human Services (HHS). "These groups will not replace government but rather partner with it." H.R. 7, as passed by the House on July 19, 2001 by a vote of 233 to 198, would apply charitable choice rules, significantly changed from those in current charitable choice laws, to a range of (nine) program areas and activities, some of which may overlap with TANF-funded activities. Sponsored by Representative Watts and introduced on March 29 as the Community Solutions Act of 2001, H.R. 7 was referred to the Committees on Ways and Means and the Judiciary. The measure embodies two major components of President Bush's faith-based initiative -- namely, tax incentives to expand private giving (Title I) and expansion of charitable choice (Title II). The Ways and Means Committee dealt with Titles I and III, the Judiciary Committee with Title II. As modified by the Ways and Means Committee 3 The 1996 law also applied charitable choice rules to food stamps, Medicaid, and Supplemental Security Income (SSI) to the extent that they use contracts or vouchers. CRS-2 and passed by the House, the tax incentives in Title I were scaled back sharply (for instance, the Bush budget proposal to allow tax deductions for a portion of charitable donations for non-itemizing tax filers was estimated to cost $84 billion in forgone revenue over 10 years, but the smaller version voted by the House is estimated to cost $6.4 billion). As introduced, Title III of H.R. 7 proposed a permanent program of Individual Development Accounts, financed with tax credits, but the Ways and Means Committee substituted language revising and extending an existing IDA program and doubling its authorized funding. On June 18, 2002, the Senate Finance Committee approved a revised H.R. 7 (now called the Care Act), which omitted provisions to expand charitable choice, but included tax incentives for private giving and IDA provisions. This bill did not reach the Senate floor. The H.R. 7 charitable choice proposal resulted in several congressional hearings (the first ever conducted on charitable choice) and has aroused much controversy. For background and legal issues, see CRS Report RL31043. Major Arguments of Supporters ! To fund only secular programs discriminates against religious programs. It is just as inappropriate for government to favor non- religion as to promote one religion over another; ! Faith-based programs can attract large amounts of volunteer time; staff have a sense of mission that inspires those they serve; these organizations often help in ways that government cannot, providing love as well as services, guidance and friendship as well as a meal or training; ! Charitable choice has been carefully written to protect constitutional values; ! Charitable choice rules protect the religious character of faith-based providers; they specify that religious organizations shall retain control over the definition, development, practice, and expression of their religious beliefs; and ! Charitable choice rules protect the religious liberty of beneficiaries; they require that if a recipient objects to the religious character of the provider, the government must provide an alternate and accessible provider. Major Arguments of Opponents ! Charitable choice may lead to unconstitutional use of government funds to promote a specific religious practice or belief; ! Since money is interchangeable, government funds given for a secular purpose could indirectly help to fund the organization's religious purposes, undermining governmental neutrality toward religion; ! Charitable choice rules would require government to decide what is a legitimate religion and what is not, what is preaching and what is not; CRS-3 ! Direct government grants to religious groups could make churches dependent on government, eroding their mission and tending to secularize them; and ! Charitable choice promotes government-funded discrimination by allowing religious organizations that receive federal dollars for their services to hire and fire on the basis of religious beliefs. CRS-4 Table 1. Charitable Choice: House-Passed H.R. 7 Compared with Three Existing Charitable Choice Laws4 Community Renewal Charitable Choice Act Charitable Choice Act Children's Health Act Tax Relief Act Title II of H.R. 7 Title II of H.R. 7 P.L. 104-193 (Title XXXIII of (H.R. 5662), enacted as as introduced as passed by the House (Welfare Reform) P.L. 106-310) part of P.L. 106-554 Title Provision of assistance Same as original H.R. 7 Services provided by Nondiscrimination and Prevention and treatment under government charitable, religious, or institutional safeguards of substance abuse; programs by religious and private organizations. for religious providers. services provided through community organizations. [Section 104] religious organizations. Would enact a new Same as original H.R. 7 [Section 3305, as titled [Section 144 , Subtitle E, Section 1991 in Title above, added to Title of H.R. 5662, added to XXIV of the Revised XIX of Public Health Title V of Public Health Statutes. Service Act a new Service Act a new Part G, [Section 201] Section 1955.] entitled "services provided through religious organizations."] Short Title Charitable Choice Act of Same as original H.R. 7 None None None 2001. [Section 1991(a)] 4 A fourth current charitable choice law is Title II of P.L. 105-285, which applies its charitable choice rules to any program carried out under the Community Services Block Grant program. These provisions are shown in Table 1 of CRS Report RL31030. CRS-5 Community Renewal Charitable Choice Act Charitable Choice Act Children's Health Act Tax Relief Act Title II of H.R. 7 Title II of H.R. 7 P.L. 104-193 (Title XXXIII of (H.R. 5662), enacted as as introduced as passed by the House (Welfare Reform) P.L. 106-310) part of P.L. 106-554 Purposes (1) To provide assistance Adds a fifth purpose to To allow states to To prohibit To allow religious to needy individuals and those in original H.R. 7 contract with religious discrimination against organizations to be families in the most and lists it as number 2: organizations (and to nongovernmental program participants on effective and efficient -- To supplement the allow religious organizations and the same basis as any manner; Nation's social service organizations to accept certain individuals on other nonprofit private (2) To prohibit capacity by facilitating the certificates, vouchers, or the basis of religion in provider without discrimination against entry of new efforts and any other forms of the distribution of impairing the religious religious organizations on expanding existing efforts disbursement) under any government funds to character of the the basis of religion in the by religious and other covered program on the provide substance abuse organizations and without administration and community organizations same basis as any other services under this Title diminishing the religious distribution of in the administration and nongovernmental (XIX) and Title V, and freedom of program government assistance distribution of provider -- without the receipt of services beneficiaries. [Section under covered programs; government assistance impairing the religious under these titles; and to 582(b)] (3) To allow religious under covered programs. character of the allow the organizations organizations to assist in organizations, and to accept the funds to the administration and without diminishing the provide services without distribution of assistance religious freedom of impairing the religious without impairing their beneficiaries. [Section character of the religious character; and 104(b)] organizations or the (4) To protect the religious freedom of the religious freedom of those individuals. [Section in need who are eligible 1955(a)] for government aid, including expanding the possibility of their choosing to receive services from a religious organization. [Section 1991(b)] CRS-6 Community Renewal Charitable Choice Act Charitable Choice Act Children's Health Act Tax Relief Act Title II of H.R. 7 Title II of H.R. 7 P.L. 104-193 (Title XXXIII of (H.R. 5662), enacted as as introduced as passed by the House (Welfare Reform) P.L. 106-310) part of P.L. 106-554 Programs A program using federal A program using federal Temporary Assistance Any program providing Discretionary and Covered funds that carries out funds that carries out for Needy Families substance abuse services formula grant programs activities that are: activities that are: (TANF) and Welfare-to- under Title 19 (formula (Titles 5 and 19, -- related to the -- related to the Work grants. block grants) and Title 5 respectively) prevention and treatment prevention and treatment (discretionary grants) of administered by the of juvenile delinquency of juvenile delinquency Any other program the Public Health Substance Abuse and and the improvement of and the improvement of modified or established Service Act. [Section Mental Health Services the juvenile justice the juvenile justice under Titles I or II of 1955(a)(1)] Administration that system, including those system, including those P.L. 104-193 that award financial assistance funded under the Juvenile funded under the Juvenile permits contracts with to public or private Justice and Delinquency Justice and Delinquency organizations or permits entities to carry out Prevention Act; Prevention Act; certificates, vouchers, or activities to prevent or -- related to the -- related to the other forms of treat substance abuse. prevention of crime, prevention of crime and disbursement to be [Section 581] including programs assistance to crime provided to beneficiaries, funded under Title I of the victims and offenders' as a means of providing Omnibus Crime Control families, including aid. [Section 104 (a)(2)] and Safe Streets Act; programs funded under Title I of the Omnibus These programs are food Crime Control and Safe stamps, Medicaid, and -- under federal housing Streets Act; Supplemental Security laws; -- related to the Income (SSI) -- to the provision of assistance extent that they are under federal housing administered through laws, including the contracts or vouchers Community Development with nongovernmental -- under Title I of the Block Grant Program agencies. They generally Workforce Investment (CDBG); are administered directly Act (training programs -- under subtitle B or D by public agencies, and and Job Corps); of Title I of the federal law requires that -- under the Older Workforce Investment eligibility for Medicaid Americans Act; Act (training programs); and food stamps be -- under the Child Care -- under the Older decided by government and Development Block Americans Act; personnel or by persons CRS-7 Community Renewal Charitable Choice Act Charitable Choice Act Children's Health Act Tax Relief Act Title II of H.R. 7 Title II of H.R. 7 P.L. 104-193 (Title XXXIII of (H.R. 5662), enacted as as introduced as passed by the House (Welfare Reform) P.L. 106-310) part of P.L. 106-554 Programs and regulations governing comparable merit Covered religious providers of systems. (continued) child care under the -- (Note: Judiciary CCDBG). Committee bill moved -- under the Community CDBG to housing entry Development Block Grant above) program; -- related to intervention -- related to intervention in and prevention of in and prevention of domestic violence domestic violence activities, including activities; programs under the Child Abuse Prevention and Treatment Act or the Family Violence Prevention and Services Act; -- related to hunger relief -- related to hunger relief activities; activities; -- under the Job Access -- under the Job Access and Reverse Commute and Reverse Commute grant program under the grant program under the Federal Transit Act; and Federal Transit Act; and -- to assist students -- to assist students obtain equivalents of obtain equivalents of secondary school secondary school diplomas and activities diplomas and activities relating to non-school- relating to non-school- hour programs. hour programs, including programs under Chapter 3 of subtitle A of Title II of the Workforce Investment Act or part I of Title X of the Elementary and Secondary Education Act. CRS-8 Community Renewal Charitable Choice Act Charitable Choice Act Children's Health Act Tax Relief Act Title II of H.R. 7 Title II of H.R. 7 P.L. 104-193 (Title XXXIII of (H.R. 5662), enacted as as introduced as passed by the House (Welfare Reform) P.L. 106-310) part of P.L. 106-554 Programs Note: Activities carried Note: Activities carried Covered out under federal out under federal (continued) programs providing programs providing education to children education to children eligible to attend eligible to attend elementary or secondary elementary or secondary schools are not covered -- schools are not covered -- unless they are provided unless they are provided under one of the above- under one of the above- listed authorities or are listed authorities or are diploma-equivalent or diploma-equivalent or non-school-hour non-school-hour programs. programs. [Section 1991(c)(4)] [Section 1991(c)(4)] Inclusion of For a covered program For a covered program Authorizes states (1) to A state that chooses to Notwithstanding any Religious carried out by the federal carried out by the federal administer and provide use nongovernmental other provision of law, a Organizations government, or by a state government, or by a state services under covered organizations to provide religious organization as Nongovern- or local government with or local government with programs through services under a covered may receive financial mental federal funds, the federal funds, the contracts with charitable, program must consider assistance and be a Providers government must consider government must consider religious, or private religious organizations provider of services under religious organizations on religious organizations on organizations, and (2) to on the same basis as a covered program on the the same basis as other the same basis as other provide beneficiaries of other nongovernmental same basis as any other non-governmental non-governmental covered programs with entities, subject to the nonprofit private organizations, subject to organizations, and the certificates, vouchers, or provision immediately provider. [Section provision immediately program shall be other forms of below. [Section 582(a)] below. [Section implemented in a manner disbursement redeemable 1955(b)(2)] 1991(c)(1)(A)] that is consistent with the with charitable, establishment clause and religious, or private the free exercise clause of organizations. [Section the first amendment to the 104(a)(1)] Constitution. [Section 1991(c)(1)(A)] CRS-9 Community Renewal Charitable Choice Act Charitable Choice Act Children's Health Act Tax Relief Act Title II of H.R. 7 Title II of H.R. 7 P.L. 104-193 (Title XXXIII of (H.R. 5662), enacted as as introduced as passed by the House (Welfare Reform) P.L. 106-310) part of P.L. 106-554 Requirement The nondiscrimination See provision If a state uses this The nondiscrimination The nondiscrimination for provision above applies if immediately above. authority, religious provision above applies provision above applies Consistency the program is organizations are so long as the programs as long as the programs with the First implemented in a manner eligible, on the same are implemented in a are implemented Amendment to consistent with the basis as any other private manner consistent with consistent with the the Establishment and Free organization, to be the Establishment Establishment and the Constitution Exercise Clauses of the contractors, or to accept Clause of the first Free Exercise Clauses of first amendment to the certificates, vouchers, or amendment to the the first amendment to Constitution. other forms of Constitution. [Section the Constitution. [Section [Section 1991(c)(1)(A)] disbursement under a 1955(b)(2)] 582(c)] covered program -- so long as the program is implemented consistent with the Establishment Clause of the first amendment to the Constitution. [Section104(c)] CRS-10 Community Renewal Charitable Choice Act Charitable Choice Act Children's Health Act Tax Relief Act Title II of H.R. 7 Title II of H.R. 7 P.L. 104-193 (Title XXXIII of (H.R. 5662), enacted as as introduced as passed by the House (Welfare Reform) P.L. 106-310) part of P.L. 106-554 Prohibition on Neither the federal Same as original H.R. 7. Unless state law forbids Same as original H.R. 7. Same as original H.R. 7. Discrimination government, nor a state or [Section 1991(c)(1)(B)] or restricts spending of [Section 1955(b)(2)] (Section 582 (c)(2)] Against local government state funds by religious Religious receiving funds under a bodies, neither the Organizations covered program may federal government nor a discriminate against an state receiving funds organization that provides under a covered program assistance or applies to may discriminate against provide assistance under an organization that is or the program, on the basis applies to be a contractor that the organization has or that accepts a religious character. certificates, vouchers, or [Section 1991(c)(1)(B)] other forms of disbursement, on the basis that the organization has a religious character. [Section 104(c)] CRS-11 Community Renewal Charitable Choice Act Charitable Choice Act Children's Health Act Tax Relief Act Title II of H.R. 7 Title II of H.R. 7 P.L. 104-193 (Title XXXIII of (H.R. 5662), enacted as as introduced as passed by the House (Welfare Reform) P.L. 106-310) part of P.L. 106-554 Funds Not Federal, state, or local Federal, state, or local No provision No provision No provision Construed to government funds or other government funds or other Be Aid to assistance received by a assistance received by a Religious religious organization for religious organization for Organizations the provision of services the provision of services under this Act constitutes under this Act constitutes aid to needy individuals aid to needy individuals and families, the ultimate and families, the ultimate beneficiaries of the beneficiaries of the services, and not aid to the services, and not support religious organization. for religion or the [Section 1991(c)(2)] organization's religious beliefs or practices. Notwithstanding these provisions, Title VI of the Civil Rights Act, which bars discrimination on the basis of race, color, or national origin, shall apply to organizations receiving direct assistance funded under any covered program. [Section 1991(c)(2)] CRS-12 Community Renewal Charitable Choice Act Charitable Choice Act Children's Health Act Tax Relief Act Title II of H.R. 7 Title II of H.R. 7 P.L. 104-193 (Title XXXIII of (H.R. 5662), enacted as as introduced as passed by the House (Welfare Reform) P.L. 106-310) part of P.L. 106-554 Funds Not The receipt by a religious The receipt by a religious No provision No provision No provision Construed to organization of federal, organization of Federal, Be state, or local government State, or local government Endorsement funds or other assistance funds or other assistance of Religion under the Charitable under the Charitable Choice Act is not and Choice Act is not an should not be perceived as endorsement by the an endorsement by the government of religion or government of religion or the organization's the organization's religious beliefs or religious beliefs or practices. [Section practices. [Section 1991(c)(3)] 1991(c)(3)] Religious Character and Independence Control A religious organization A religious organization A religious organization A religious organization Any religious over that provides assistance that provides assistance with a contract or which that provides services organization that is a religious under a covered program under a covered program accepts certificates, under a covered program participant practices retains its autonomy from has the right to retain its vouchers, or other forms program retains its retains its independence federal, state, and local autonomy from federal, of disbursement under a independence from from federal, state, and governments, including its state, and local covered program, retains federal, state, or local local government, control over the governments, including its its independence from governments, including including its control over definition, development, control over the federal, state, and local its control over the the definition, practice, and expression definition, development, governments, including definition, development, development, practice, of its religious beliefs. practice, and expression its control over the practice, and expression and expression of its [Section 1991(d)(1)] of its religious beliefs. definition, development, of its religious beliefs. religious beliefs. [Section [Section 1991(d)(1)] practice, and expression [Section 1955(c)(1)] 582(d)(1)] CRS-13 Community Renewal Charitable Choice Act Charitable Choice Act Children's Health Act Tax Relief Act Title II of H.R. 7 Title II of H.R. 7 P.L. 104-193 (Title XXXIII of (H.R. 5662), enacted as as introduced as passed by the House (Welfare Reform) P.L. 106-310) part of P.L. 106-554 of its religious beliefs. [Section 104(d)(1)] Internal Neither the federal Neither the federal Neither the federal Neither the federal nor a Neither the federal gover- government nor a state or government nor a state or government nor a state state or local government nor a state nance and local government may local government with may require a religious government may require may require a religious religious require a religious federal funds may require organization to alter its a religious organization organization to alter its symbols organization to alter its a religious organization to form of internal to alter its form of form of internal form of internal alter its form of internal governance, or to internal governance or governance or remove governance; or to remove governance or provisions remove religious art, to remove religious art, religious art, icons, religious art, icons, in its charter documents; icons, scripture, or other icons, scripture, or other scripture, or other scripture, or other or to remove religious art, symbols in order to be symbols in order to be symbols. [Section symbols because they are icons, scripture, or other eligible to contract to eligible to provide 582(d)(2)] religious, in order to be symbols, or to change its provide assistance or to services under any eligible to provide name, because the accept certificates, covered program. assistance under a covered symbols or name are vouchers, or other forms [Section 1955(c)(2)] program. [Section religious, in order to be of disbursement funded 1991(d)(2)] eligible to provide under a covered assistance under a covered program. [Section program. [Section 104(d)(2)] 1991(d)(2)] Employment Practices Civil Rights The exemption of a The exemption of a A religious The exemption of a The exemption of a Act religious organization religious organization organization's exemption religious organization religious organization exemption under Sections 702 or under Sections 702 or under Section 702 of the under Sections 702 or under Section 702 of the 703(e)(2)b of the Civil 703(e)(2)b of the Civil Civil Rights Act 703(e)(2)b of the Civil Civil Rights Act Rights Act regarding Rights Act regarding regarding employment Rights Act regarding regarding employment employment practices is employment practices is practices is not affected employment practices is practices is not affected not affected by its not affected by its by its participation in, or not affected by its by its participation in, or provision of assistance provision of assistance receipt of funds, from provision of services receipt of funds from, a CRS-14 Community Renewal Charitable Choice Act Charitable Choice Act Children's Health Act Tax Relief Act Title II of H.R. 7 Title II of H.R. 7 P.L. 104-193 (Title XXXIII of (H.R. 5662), enacted as as introduced as passed by the House (Welfare Reform) P.L. 106-310) part of P.L. 106-554 under, or receipt of funds under, or receipt of funds covered programs. under, or receipt of covered program. from, a covered program. from, a covered program, [Section 104(f)] funds from any covered [Section 582(e)] [Section 1991(e)(2)] and any provision in these program. [Section programs that is 1955(d)(2)] inconsistent with or would diminish the exercise of Civil Rights an organization's For conflicting rule For conflicting provision Act autonomy recognized in regarding formula regarding formula grants exemption section 702 or in this Act grants in Public Health in Public Health Service (continued) shall have no effect. Service law, see law, see Application of Nothing in this Act affects Application of Other Other Laws Forbidding the duty of religious Laws Forbidding Discrimination, below. organizations to comply Discrimination, below. with nondiscrimination provisions of Title 7 in the use of federal funds. [Section 1991(e)] Tenets and Notwithstanding any other No provision No provision A religious organization No provision religious provision of law, a that provides services practices religious organization that under a covered provides assistance under substance abuse a covered program may program may require require that its employees that its employees adhere to its religious adhere to rules practices. [Section forbidding the use of 1991(e)(1)] drugs or alcohol. [Section 1955(d)(1)] CRS-15 Community Renewal Charitable Choice Act Charitable Choice Act Children's Health Act Tax Relief Act Title II of H.R. 7 Title II of H.R. 7 P.L. 104-193 (Title XXXIII of (H.R. 5662), enacted as as introduced as passed by the House (Welfare Reform) P.L. 106-310) part of P.L. 106-554 Education- No provision No provision No provision No provision In determining whether al require- personnel of a religious ments for organization with a personnel record of successful drug treatment for the preceding 3 years have satisfied state or local requirements for education and training, a state or local government shall not discriminate against education and training provided to personnel by a religious organization, so long as it includes basic content substantially equivalent to the content of credit- eligible training provided by nonreligious organizations. [Section 584(b)] Application of Nothing in this Act alters Same as in original H.R. 7 P.L. 104-193 says that No provision Nothing in this section Other Laws the duty of a religious [Section 1991(f)] any program or activity shall be construed to Forbidding organization to comply that receives funding modify or affect any Discrimination with federal laws from the program of other federal or state law prohibiting discrimination Temporary Assistance or regulation concerning on the basis of: race, for Needy Families is discrimination in color, or national origin subject to the employment. [Section (Title VI of the Civil nondiscrimination 582(e)] Rights Act); sex, provisions of the Age Note: The Public Health Note: The Public Health blindness, or visual Discrimination Act, Service Act says that on Service Act says that on impairment (Title IX of Section 504 of the grounds of religion, no grounds of religion, no the Education Rehabilitation Act, the one shall be excluded one shall be excluded CRS-16 Community Renewal Charitable Choice Act Charitable Choice Act Children's Health Act Tax Relief Act Title II of H.R. 7 Title II of H.R. 7 P.L. 104-193 (Title XXXIII of (H.R. 5662), enacted as as introduced as passed by the House (Welfare Reform) P.L. 106-310) part of P.L. 106-554 Amendments of 1972); Americans with from, denied benefits of, from, denied benefits of, disabilities (of otherwise Disabilities Act, and or subjected to or subjected to qualified persons) Title VI of the Civil discrimination under a discrimination under a (Section 504 of the Rights Act. program or activity program or activity Application of Rehabilitation Act); (Age [Section 408(d) of the receiving substance receiving substance abuse Other Laws Discrimination Act). Social Security Act] abuse or mental health or mental health block Forbidding [Section 1991(e)(3)] block grant funds [42 grant funds [42 U.S.C. Discrimination U.S.C. 300x-21 and 300x-21 and 200x-57]. (continued) 200x-57]. Courts have Courts have held that held that these these prohibitions against prohibitions against religious discrimination religious discrimination apply to employment apply to employment practices as well as to practices as well as to beneficiary service. beneficiary service. Rights of Beneficiaries Right to If a beneficiary or If a beneficiary or If a beneficiary of, If a beneficiary or If a beneficiary or alternative applicant has an objection applicant has an objection applicant for, or a person applicant has an applicant objects to the provider to the religious character to the religious character who requests to apply for objection to the religious character of a of the organization of the organization assistance under a religious character of provider, the faith-based providing assistance, the providing assistance, the covered program has an the organization provider must refer the appropriate governmental appropriate governmental objection to the religious providing services, the person to services entity must provide, entity must provide, character of the appropriate (provided by the within a reasonable period within a reasonable period organization or governmental entity governmental unit that of time, assistance from of time, assistance from institution providing must provide, within a administers the program) an accessible and alternate an accessible and alternate assistance, the state in reasonable period of from an alternative and provider, including a provider that is which the person resides, time, services from an accessible provider with a secular one, that is at unobjectionable to the must provide, within a alternative and value at least equal to that least equal in value to the person on religious reasonable period of accessible provider with of services that would aid that would have been grounds and that is at least time, assistance from an a value at least equal to have been received from received from the equal in value to the aid accessible and that of services that the religious organization. religious entity. that would have been alternative provider with would have been The faith-based CRS-17 Community Renewal Charitable Choice Act Charitable Choice Act Children's Health Act Tax Relief Act Title II of H.R. 7 Title II of H.R. 7 P.L. 104-193 (Title XXXIII of (H.R. 5662), enacted as as introduced as passed by the House (Welfare Reform) P.L. 106-310) part of P.L. 106-554 [Section 1991(f)(1) & and received from the a value at least equal to received from the organization must notify (3)] religious organization. that of the assistance that religious organization. the government agency [Section 1991(g)(1) and would have been [Section 1955(e)(1)] that administers the (3)] received from the program about its religious organization. referral. [Section 104(e)] [Section 582(f)(1)] Before making the referral, the faith-based organization must consider any list that state or local government makes available of entities in the area that provide program services. The faith-based organization must ensure that the beneficiary makes contact with the alternative provider. [Section 582(f)(3)] Notice of The appropriate federal, Same as original H.R. 7 No provision The appropriate Program participants benefici- state or local [Section 1991(g)(2)] governmental entity (including faith-based ary right to governmental entity must must guarantee that organizations), public alterna- guarantee that notice of notice of beneficiary agencies that refer tive beneficiary rights to rights to service from an persons to covered provider service from an alternate provider is programs, and the alternative provider is given to beneficiaries or governments that given to beneficiaries or applicants for assistance administer covered applicants for assistance under a covered programs or are program under a covered program. program. [Section participants must ensure [Section 1991(f)(2) and 1955(e)(2) and (3)] that notice of their rights (3)] to service from an alternative provider is given to beneficiaries or CRS-18 Community Renewal Charitable Choice Act Charitable Choice Act Children's Health Act Tax Relief Act Title II of H.R. 7 Title II of H.R. 7 P.L. 104-193 (Title XXXIII of (H.R. 5662), enacted as as introduced as passed by the House (Welfare Reform) P.L. 106-310) part of P.L. 106-554 prospective beneficiaries. Section 582(f)(2) Non- A religious organization A religious organization Except as otherwise A religious organization A religious organization discrimination providing assistance providing assistance provided in law, a providing services shall not discriminate Against through a grant or contract through a grant or religious organization through a grant, against a program Beneficiaries under a covered program cooperative agreement shall not discriminate contract, or cooperative beneficiary or prospective shall not discriminate, in under a covered program against a person in agreement under any beneficiary on the basis carrying out the program, may not discriminate, in giving assistance under covered program shall of religion or religious against a beneficiary or carrying out the program, any covered program on not discriminate against belief in providing applicant on the basis of against a beneficiary or the basis of religion, a a beneficiary or services or engaging in religion, a religious belief, applicant on the basis of religious belief, or applicant on the basis of outreach activities under or refusal to hold a religion, a religious belief, refusal to actively religion, a religious covered programs. religious belief. [Section or a refusal to hold a participate in a religious belief, a refusal to hold [Section 582(f)(4)] 1991(g)(1)] religious belief. [Section practice. [Section a religious belief, or a 1991(h)(1)]. 104(g)] refusal to actively A religious organization A religious organization participate in a religious providing assistance providing assistance practice. [Section through a voucher, through a voucher, 1955(f)] certificate, or other form certificate, or other form of indirect disbursement of indirect disbursement under a covered program, under a covered program, shall not discriminate, in may not deny admission carrying out the program, into the program on the against a beneficiary or basis of religion, religious applicant on the basis of belief, or refusal to hold a religion, religious belief, religious belief. [Section or refusal to hold a 1991(h)(2)] religious belief. [Section Note: If a religious 1991(g)(2)] organization that receives funds through a grant or cooperative agreement offers religious activities, they must be voluntary CRS-19 Community Renewal Charitable Choice Act Charitable Choice Act Children's Health Act Tax Relief Act Title II of H.R. 7 Title II of H.R. 7 P.L. 104-193 (Title XXXIII of (H.R. 5662), enacted as as introduced as passed by the House (Welfare Reform) P.L. 106-310) part of P.L. 106-554 Nondiscrimi- for recipients, and offered nation Against separate from the program Beneficiaries funded under this Act. (continued) [Section 1991(j)] (See immediately below) Limitation on No funds provided Same prohibition on use No funds provided No funds provided No funds provided under Use of Funds through a grant or contract of direct funding for directly to institutions or through a grant or a covered program shall for Sectarian to a religious organization religious activity as in organizations to provide contract to a religious be spent for sectarian Activities for assistance under a original H.R. 7. services and administer organization to provide worship, instruction, or covered program may be [Section 1991(j)] programs may be spent services under any proselytization. [Section spent for sectarian for sectarian worship, covered program may 583] worship, instruction, or If such an organization instruction, or be spent for sectarian proselytization. offers sectarian worship, proselytization. [Section worship, instruction, or [Section 1991(i)] instruction, or 104(j)] proselytization. [Section proselytization, the [Note: This prohibition 1955(i)] religious activity must be does not apply in cases voluntary for recipients of assistance provided to and offered separate from individuals through the program funded under certificates, vouchers, or this Act. other forms of Each recipient Each recipient disbursement redeemable organization must file a organization must file a at charitable, religious, signed certificate separately signed or private organizations.] providing assurance that it certificate certifying that will comply with the the organization is aware above rule. [Section of and will comply with 1991(i)] these rules. [Section 1991(j)] CRS-20 Community Renewal Charitable Choice Act Charitable Choice Act Children's Health Act Tax Relief Act Title II of H.R. 7 Title II of H.R. 7 P.L. 104-193 (Title XXXIII of (H.R. 5662), enacted as as introduced as passed by the House (Welfare Reform) P.L. 106-310) part of P.L. 106-554 Authority to No provision When consistent with the No provision No provision No provision Require Use of purpose of a covered Vouchers and program, the Secretary of Certificates the department administering it may require that some or all of the funds be in the form of vouchers, certificates or other forms of indirect disbursement. Organizations receive these funds only as a result of private choices of beneficiaries, and no government endorsement of any religion, or of religion generally, occurs. [Section 1991(l)] CRS-21 Community Renewal Charitable Choice Act Charitable Choice Act Children's Health Act Tax Relief Act Title II of H.R. 7 Title II of H.R. 7 P.L. 104-193 (Title XXXIII of (H.R. 5662), enacted as as introduced as passed by the House (Welfare Reform) P.L. 106-310) part of P.L. 106-554 Fiscal Accountability Audit Except for the Except for the limited Except for the limited Same as original H.R. 7. Essentially the same as (general) requirement to segregate audit and self-audit audit provision noted [Section 1955(g)(1)] original H.R. 7. [Section government funds and the provisions noted below, below, any religious 582(g)(1)] limited audit provision any religious organization organization contracting noted below, any religious proving assistance to provide assistance organization contracting through a grant or under a covered program to provide assistance cooperative agreement is subject to the same under a covered program under a covered program regulations as other is subject to the same is subject to the same contractors to account regulations as other regulations as other for use of funds received nongovernmental nongovernmental in accord with generally organizations to account organizations to account accepted auditing for use of funds received for use of funds received principles. [Section in accord with generally in accord with generally 104(h)(1)] accepted auditing accepted auditing principles. principles. [Section 1991(h)(1)] [Section 1991(I)(1)] Limited The religious organization If the organization If the religious Same as original H.R. 7. Essentially the same as audit must segregate provides assistance organization segregates [Section 1955(g)(2)] original H.R. 7. government funds through a grant or federal program funds [Section582(g)(2)] provided into a separate cooperative agreement, it into separate accounts, account. Only the must segregate only the financial government funds are government funds into a assistance provided with subject to audit by the separate account. If it those funds is subject to government. [Section provides assistance audit. [Section 1991(h)(2)] through vouchers, 104(h)(2)] certificates, CRS-22 Community Renewal Charitable Choice Act Charitable Choice Act Children's Health Act Tax Relief Act Title II of H.R. 7 Title II of H.R. 7 P.L. 104-193 (Title XXXIII of (H.R. 5662), enacted as as introduced as passed by the House (Welfare Reform) P.L. 106-310) part of P.L. 106-554 Limited or other indirect aid, it audit may segregate (continued) government funds. Only separate accounts consisting of government funds are subject to audit by government. [Section 1991(i)(2)] Self Audit No provision An organization providing No provision No provision No provision services under any covered program shall conduct annually a self audit for compliance with its duties under this Act and submit a copy to the appropriate government agency, along with a plan to correct any variances. [Section 1991(i)(3)] CRS-23 Community Renewal Charitable Choice Act Charitable Choice Act Children's Health Act Tax Relief Act Title II of H.R. 7 Title II of H.R. 7 P.L. 104-193 (Title XXXIII of (H.R. 5662), enacted as as introduced as passed by the House (Welfare Reform) P.L. 106-310) part of P.L. 106-554 Effect on State If a state or local Same as original H.R. 7 No provision Same as original H.R. 7. No provision and Local government contributes [Section 1991(k)] [Section 1955(j)] Funds funds to carry out a covered program, the state or local government may segregate its funds from the federal funds provided for the program or may commingle its funds with federal funds. If funds are commingled, the provisions of this Act apply in the same manner, and to the same extent, as they apply to federal funds. [Section 1991(j)] CRS-24 Community Renewal Charitable Choice Act Charitable Choice Act Children's Health Act Tax Relief Act Title II of H.R. 7 Title II of H.R. 7 P.L. 104-193 (Title XXXIII of (H.R. 5662), enacted as as introduced as passed by the House (Welfare Reform) P.L. 106-310) part of P.L. 106-554 Treatment of If an intermediate If an intermediate grantor No provision If an intermediate No provision Intermediate contractor is given is given authority to select organization is given Contractors/ authority to select nongovernmental authority to select Grantors nongovernmental organizations as nongovernmental (Non- organizations as subgrantors to provide organizations to provide governmental subcontractors to provide assistance under a covered services under any Organizations assistance under a covered program, the intermediate covered program, the Acting under program, the intermediate grantor has the same intermediate Agreement contractor has the same duties under this Act as organization has the with a duties under this Act as the government when same duties under this Government the government when selecting or otherwise section as the Entity) selecting or otherwise dealing with subgrantors; government but shall dealing with but, if the intermediate retain all other rights of subcontractors; but, if the grantor is a religious a nongovernmental intermediate contractor is organization, it retains all organization under this a religious organization, it other rights of a religious section. [Section retains all other rights of a organization under this 1955(k)] religious organization Act. [Section 1991(m)] under this Act. [Section 1991(k)] Technical No provision Out of amounts made No provision No provision No provision Assistance for available for Office of Small Justice Programs, Nongovern- including those for the mental Office of Community Organizations Oriented Policing Services, authorizes $50 million annually to provide training and technical assistance to small nongovernmental organizations, as determined by the Attorney General, CRS-25 Community Renewal Charitable Choice Act Charitable Choice Act Children's Health Act Tax Relief Act Title II of H.R. 7 Title II of H.R. 7 P.L. 104-193 (Title XXXIII of (H.R. 5662), enacted as as introduced as passed by the House (Welfare Reform) P.L. 106-310) part of P.L. 106-554 Technical including religious Assistance for organizations, in Small procedures related to Nongovern- participating in covered mental programs. Assistance Organizations may include help in (continued) creating a non-profit Section 501(c)(3) corporation, help in grant writing, information and referrals to other nongovernmental groups that provide expertise in accounting, legal issues, tax issues, and other areas; and guidance on how to comply with federal nondiscrimination provisions. Reserves at least $5 million for assistance in providing access to disabled persons. Gives priority to small governmental organizations serving urban and rural communities. [Section 1991(o)]. CRS-26 Community Renewal Charitable Choice Act Charitable Choice Act Children's Health Act Tax Relief Act Title II of H.R. 7 Title II of H.R. 7 P.L. 104-193 (Title XXXIII of (H.R. 5662), enacted as as introduced as passed by the House (Welfare Reform) P.L. 106-310) part of P.L. 106-554 Compliance A party alleging that a A party alleging that a Any party which seeks to Any party that seeks to A religious organization state or local government state or local government enforce its rights under enforce its rights under may obtain review of has violated its rights has violated its rights the charitable choice this section may assert a agency action in federal under this Act may bring a under this Act may bring provisions of P.L. 104- civil action for court in accordance with civil action pursuant to a civil action for 193 may assert a civil injunctive relief Chapter 7 of Title 5, section 1979 against the injunctive relief pursuant action for injunctive exclusively in an United States Code. official or government to section 1979 against the relief exclusively in an appropriate federal or [Section 582(h)] agency that has allegedly state official or local appropriate state court state court against the committed the violation. government agency that against the entity or entity, agency, or A party alleging that the has allegedly committed agency that allegedly official that allegedly federal government has the violation. A party commits the violation. commits the violation. violated its rights under alleging that the federal [Section 104(i)] [Section 1955(h)] this Act may bring a civil government has violated action for appropriate its rights under this Act relief in an appropriate may bring a civil action federal district court for injunctive relief in against the official or federal district court government agency that against the official or allegedly committed the government agency that violation. [Section allegedly committed the 1991(l)] violation. [Section 1991(n)] CRS-27 Community Renewal Charitable Choice Act Charitable Choice Act Children's Health Act Tax Relief Act Title II of H.R. 7 Title II of H.R. 7 P.L. 104-193 (Title XXXIII of (H.R. 5662), enacted as as introduced as passed by the House (Welfare Reform) P.L. 106-310) part of P.L. 106-554 Preemption of No explicit provision. No explicit provision.c (In Nothing in the charitable No explicit provision. Nothing in this section Other Law? a colloquy on the House choice provisions of P.L. shall be construed to floor before passage, Rep. 104-193 is to be modify or affect any Watts, bill sponsor, was construed to preempt a other federal or state law asked whether he would provision of a state or regulation relating to commit to working to constitution or law that discrimination in craft language that would prohibits or restricts employment. [Section ensure that religious spending of state funds 582(e)] organizations comply with in or by religious state and local civil rights organizations. [Section laws. Rep. Watts said he 104(k)] was willing to make a commitment to "more clearly address" this issue in conference.) a Under the CCDBG, religious providers may receive funding on the same basis as nonsectarian providers. However, religious providers may use funds for construction (generally disallowed for other providers) to the extent needed to bring facilities into compliance with health and safety standards. Use of CCBDG funds for religious activities, including sectarian worship or instruction, generally is prohibited; but this prohibition does not apply to funds received by providers in the form of child care certificates, if the sectarian services are freely chosen by the parent. Providers may not discriminate in admissions against a child on the basis of religion, with the exceptions of family child care providers and providers who receive CCDBG funds in the form of child care certificates. However, sectarian providers may reserve unsubsidized slots fo children whose families regularly participate in their organization's activities, unless 80% or more of their operating budget comes from federal or state funds, including child care certificates. In their employment practices, providers may not discriminate on the basis of religion if the employee's primary duties are to give child care. However, in considering two or more qualified applicants, sectarian providers may give preference to a person who regularly participates in the organization's activities. Also, sectarian organizations may require employees to adhere to their religious tenets or teaching and to rules forbidding the use of drugs or alcohol, unless 80% or more of their operating budget comes from federal or state funds. See CRS Report RL30785, The Child Care and Development Block Grant: Background and Funding, by Alice Butler and Melinda Gish. b It appears that provisions of Section 703(e)(2) of the Civil Rights Act are subsumed by Section 702. c Before passage, the question was asked on the House floor: "If a state law prohibits discrimination based on a particular characteristic, and if a religious organization would ordinarily (based on state law) be required to comply with that law, would H.R. 7 change that situation in any way? Rep. Watts replied: "Yes, H.R. 7 would change this situation, in a particular instance. If a religious organization were to commingle federal funds with state monies, it could assert its right under subsection (d) and (e) of H.R. 7 against the enforcement of state or local procurement provisions that limited the religious organization's ability to hire staff on a religious basis." Note: Subsection (d) concerns the right of a religious organization to retain control over its organizational character and autonomy. Subsection (e) provides that the religious organization's right to hire and fire on the basis of religion (under Section 702 of Title VII of the Civil Rights Act) is not affected by its participating in a program covered by the Act. It also provides that any provision in a covered program that is inconsistent with or that would diminish the exercise of the religious organization's autonomy under Section 702 shall have no effect. ------------------------------------------------------------------------------ For other versions of this document, see http://wikileaks.org/wiki/CRS-RL31042