Response to Questions of Senator Edward M. Kennedy By Vincent Phillip Muñoz Senate Judiciary Hearing Hostility to Religious Expression in the Public Square" 23 June 2004 The questions request my views on the "legal requirements applicable to religious organizations." Let me make clear that my responses are in reference to the constitutional limitations imposed by the First Amendment's Establishment and Free Exercise Clauses. What is "legally required" (e.g. by State or Federal law) is different from what is "constitutionally allowed." As my testimony focused on the original meaning of the First Amendment's religion clauses, my answers will focus on the requirements and prohibitions imposed by the Constitution. 1. In your view, may the government directly fund a church or other religious institution? The First Amendment's protection of religious liberty has traditionally been understood to prohibit direct government funding of churches or religious institutions as such. An example of a policy that would clearly violate the First Amendment would be a federal law that offered grants to churches specifically to pay for the construction of houses of worship or the payment of clergy. Stated simply, to pass constitutional muster, government funding must, at minimum, be tied to a “secular legislative purpose." 2. Do you believe that it is permissible for the government to fund religious programs? If so, under what circumstances? The Constitution's Establishment Clause and Free Exercise Clause do not prohibit religious organizations from participating along with non-religious organizations in government-funded programs. To pass constitutional muster, all government programs must have a non-religious legislative purpose (e.g. civic education, reduction of poverty, etc.). As long as faith-based organizations' participation in government-funded programs support the secular purpose aimed at by legislation, they may participate in such programs. The participation of faith-based organizations in such programs does not, de facto, make such programs inherently religious or constitutionally suspect. The primary constitutional question that should govern faith-based institution's participation in government funded programs is: Does such participation foster the nonreligious legislative purpose set forth by the government funded program. The Constitution forbids the government from discriminating against religious organizations as such in its funding decisions. That is, a faith-based organization cannot be excluded from a generally available program on account of religious affiliation. The Constitution also forbids government discrimination against non-religious organizations on account of their lack of religious character. The constitutional norms in matters of federal funding are equal access and non-discrimination on account of religion. 3. Do you believe the government may ever allow a religious organization to practice employment discrimination based on religion in programs and positions financed by federal funds? If so, on what basis, and in which circumstances. The First Amendment religion clauses do not reach questions of employment hiring for organizations that receive government funds. Employment practices by private associations, including religious organizations, are governed by State and Federal law alone. It is permissible under the First Amendment for religious organizations to have employment practices that reflect their organizations' spiritual character. Thank you for your leadership and foresight in addressing the important issues of Hostility to Religious Expression in the Public Square. My answers to your questions are as follows: Questions 1- No, we do not agree with the few in the hearing who suggested that hostility to religious freedom is not an issue in this country. Hostility to religious expression is real and much too frequent, to an extent that would be shocking to most Americans. Exhibit A (attached) is a long list of cases, over 50 pages worth, reflecting religious hostility across America. These cases just scratch the surface of what is happening across the country. The sad truth, in addition, is that most people suffering discrimination simply quietly accept it without ever raising an objection. For ever case actually prosecuted, there are nine others silently suffering hostility to their religious expression. Regarding your question of organizations who, in our opinion, actively litigate against religious freedom, the American Civil Liberties Union, People for the American Way and Americans United for Separation of Church and State are the leaders, constantly battling against expression of a religious viewpoint in the public square. Many of their attacks are noted in our 50 plus page list of cases. For example, in Good News Club v. Milford Central School, 533 U.S. 98 (2001), the American Civil Liberties Union, People for the American Way and Americans United for Separation of Church and State filed amicus curiae briefs advocating the suppression of speech from a religious viewpoint for all elementary school children. Regarding Question 2, I do believe the Equal Access Act is working fairly well. The Act's protections against discrimination, however, should also be extended to protect children in all schools, not just secondary schools. Discrimination against children based on their religion is really hurtful and damaging, no matter what the age of the child. Remedies and enforcement mechanisms are not currently adequate to protect people who suffer violations of their rights to religious expression. The main problem is a natural one- there are no real damages for the loss of precious constitutional rights, no money amount, and thus government officials will often continue in their violation, knowing there will be little monetary risk. This can be remedied by providing real damages to religious freedoms victims. I would suggest, for instance, that victims receive statutory damages equal to the amount of hours the government's attorneys spent fighting against their freedoms times the highest reasonable rate charged in that community. There would now be some incentive for government to at least stop a continuing violation. Ability to recover attorneys' fees is also a serious problem. As stated above, there are no real actual damages in these cases. Attorneys are thus reticent to take these cases, since they offer little remuneration. The only encouragement is that they may at least be able to recover their attorney's fees if they win. The way things are currently working, however, discourage even this. Attorneys who are successful in protecting the religious freedoms of civil rights victims are usually met with aggressive and often personal attacks when they seek to recover their fees. After all, the very government attorneys who were beaten in the case now get to go after the opposing attorneys who beat them and get to do all they can to reduce their recovery. Every minute they spent representing their client is questioned and judges usually dramatically reduce their total time spent and rate recovered. Meanwhile, the government's attorneys never have to give back a penny of what they were paid, for each hour, even though they lost the case. It is no wonder it is difficult for civil rights victims to find an attorney to represent them. I suggest that attorneys who successfully represent religious freedoms victims and restore any of their freedoms be treated more like all other attorneys are treated in the marketplace. They should submit their fees to the court, with an affidavit swearing the time spent and rate are true and correct. The time and rate should then be rebuttably presumed unless a high level of proof is offered to prove otherwise. Hostility to religious expression is a real problem. Victims desperately need better protection in the law and the encouragement in the law to get the highest quality of legal representation, so that the Constitutional freedoms of us all are protected. Sincerely, Kelly Shackelford, Esq. Chief Counsel Re: Answers to Questions- "Hostility to Religious Expression" Hearing Dear Senator Kennedy: Thank you for your questions regarding federally funded services applicable to religious organizations. My answers to your questions are as follows: While the government may not fund a religious institution or church for the reason that it is religious, the government also may not exclude or discriminate against religious institutions because they are religious. The government should, and constitutionally must, treat all groups the same. Under all neutral government programs, therefore, the government must provide funding to all groups who meet neutral criterion, including religious groups. Religious groups may not be the subject of discrimination. Regarding your last questions, I believe strongly that religious organizations must be permitted to follow their own religious faith in hiring, even in connection with the federal programs in which they participate. No religious group should be forced to abandon its religious character and beliefs in order to participate in a government program. Such a requirement would be a form of religious bigotry, forcing religious groups to abandon their core beliefs and philosophy in hiring and leadership, something which would never be suggested or forced upon secular groups such as, for example, Planned Parenthood. Attempting to force religious groups to abandon their religious character in order to participate in a federal program defeats the whole purpose of these programsproviding diversity and choice to the recipients of these services in order to provide the best chance of success. Religious groups are often the most successful in these programs because they follow their deeply held beliefs, including who may be hired and be in |