Office of Public Policy Urges Congress to Oppose Charitable Choice
February 6, 2008
Dear Chairman Kennedy and Ranking Member Enzi:
On behalf of the Center for Inquiry (CFI), a grassroots organization that encourages evidence-based inquiry into science, pseudoscience, medicine and health, religion, ethics, secularism, and society, we urge you to withhold advancing legislation reauthorizing the Substance Abuse and Mental Health Services Act (SAMHSA) unless critical changes are made to the so-called “charitable choice” provisions in current law. These provisions have undermined civil rights and religious liberty protections since their enactment in 2000. In 2006 CFI joined the Coalition Against Religious Discrimination (CARD) to oppose the insertion of charitable choice to programs such as SAMHSA, and has continued to oppose efforts, through the President’s Faith-Based Initiative, to further entrench and expand charitable choice through reauthorizations and new federal programs.
Although the reasons to oppose charitable choice are numerous, we urge you to withhold advancing charitable choice provisions in SAMHSA for three main reasons: discrimination against employees, devastation of local civil rights legislation, and the destruction of constitutional religious liberties. First, charitable choice allows federally funded programs to discriminate against potential employees solely on the basis of the candidate’s religious or non-religious affiliation. Second, charitable choice threatens to devastate local civil rights legislation by preempting local anti-discrimination laws. Third and finally, charitable choice destroys the religious liberties protected by the First Amendment to the U.S. Constitution.
I. Charitable Choice Allows for Discrimination by Federally Funded Organizations
According to the U.S. Department of Health and Human Services (HHS), “The [charitable choice] provision prohibits states from discriminating against religious organizations when choosing providers under certain federal grant programs.”  In reality, charitable choice allows religious organizations that receive federal funds to discriminate against potential employees based solely on the candidate’s religious or non-religious affiliations. In essence, charitable choice allows federally funded organizations to hire and fire on the basis of religion regardless of an employee’s other qualifications. If included in SAMSHA, the charitable choice provisions will allow religious organizations to require a religious test as a qualification for a publicly funded position, which is strictly prohibited by the U.S. Constitution.
II. Charitable Choice Threatens to Devastate Local Anti-Discrimination Laws Traditionally, local civil rights laws have provided more extensive coverage against employment discrimination than has federal law. Although SAMHSA supposedly does not affect state laws or regulations, the current charitable choice provisions contained in SAMHSA are ambiguously worded to allow for preemption of local civil rights and anti-discrimination laws. Charitable choice provisions would preempt local county, city, and municipal laws when they do not allow government funded religious organizations to hire and fire solely on the basis of religion. Charitable choice will take civil rights out of the hands of local communities and devastate their ability to protect employees from religious discrimination.
III. Charitable Choice Will Destroy Religious Liberties
As you are well aware, the First Amendment to the U.S. Constitution protects the religious liberties of U.S. citizens. The SAMHSA charitable choice provisions threaten to destroy those liberties. Namely, charitable choice allows for federal funds to flow directly to religious establishments without the establishment of a separate, religiously-affiliated 501 (C) (3) organization. This is negative both for on Constitutional grounds and for the sake of organizations being funded. First, the direct funding of religious establishments treads dangerously close to breaching the establishment clause of the First Amendment. Second, charitable choice will allow the government to monitor and control the religious establishments that it funds. This will seriously jeopardize the autonomy of religious institutions and their ability to exist independently of government funding.
In light of the three problems listed above, Congress should take care to fulfill three goals before reconsidering the charitable choice provisions in SAMHSA. First, Congress should reaffirm its commitment to civil rights by ensuring that the SAMHSA reauthorization bill does not allow federally funded organizations to hire and fire on the basis of religion. Second, Congress should take steps to clarify in reauthorizing SAMHSA that the charitable choice provisions do not devastate local civil rights laws by preempting local anti-discrimination laws. Third and lastly, Congress should protect religious liberties guaranteed in the First Amendment by not directly funding religious establishments through SAMHSA.
Charitable Choice allows for discrimination by federally funded organizations, devastates the ability of local governments to enforce their own laws, and threatens to destroy the religious liberties of the American people. Accordingly, CFI urges you to address these critical concerns in advancing SAMHSA reauthorization through the legislative process.
cc: Members of the Senate Committee on Health, Education, Labor and Pensions