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We want to implement laws already on the books that make this beneficiary choice, or, as it is more commonly and officially known, this "charitable choice," a reality. The laws now apply to many federal social-welfare programs, and we hope that they are extended to juvenile justice and other federal programs.

Are you surprised that some religious conservatives have criticized the President's plan?

There has been almost no criticism of the President's actual plan. There has, however, been lots of criticism of ideas that, to my knowledge, nobody has proposed, as well as certain pardonable misunderstandings about the settled character of constitutional law in this area.

Could you give an example?

Take the charge that any government support for faith-based organizations that provide social services is flatly unconstitutional. The support is perfectly constitutional so long as the groups that receive the support honor all relevant federal antidiscrimination policies with respect to both beneficiaries and any paid employees. They must exercise diligence in segregating program funds from other budgets. Government must guarantee secular alternatives. There can be no religious coercion. Charitable-choice laws all expressly forbid any use of funds for "sectarian worship, instruction, or proselytization." The new charitable-choice law pending in the House repeats this prohibition, and rightly so.

What's your take on the grants-versus-vouchers debate?

Voucher enthusiasts include some religious conservatives and many secular thinkers. The existing laws, like the relevant provisions of the new House bill, do not really force a choice. They provide for both direct and indirect forms of disbursement, depending on how the programs in question already operate. The case made for vouchers is that they give the widest possible constitutional latitude for religious expression. When government does not select program providers but instead gives the program beneficiary a free choice of where to seek help, the courts generally are satisfied, even if the beneficiary's voucher goes to a religious program. Likewise, some prefer vouchers by default, believing that direct grants, in due course, will enervate the religious character of participating ministries, breed dependency, and promote secularization.

The vouchers-only approach has several limitations. The vast majority of existing federal social welfare and other domestic programs are not, and have no promise of becoming, voucher-based. Vouchers are fine for big, established organizations but less fine for small, community-based ones, because vouchers cannot defray start-up or core operating costs.

What law permits religious organizations to hire only employees who share their religious commitments?

It's Title VII of the 1964 Civil Rights Act—not the charitable-choice laws, as some believe. Even with that religious exemption, the groups must still comply with the ban on race, color, gender, disability, or national origin discrimination. In 1972, Congress broadened the exemption to cover all staff of religious organizations, not just those carrying out strictly religious activities. In 1987, the U.S. Supreme Court upheld the 1972 law in a 9-0 decision, stating that religious organizations have a right to foster a "shared religious vision," not only in religious activities, but also in nonprofit activities that are not pervasively religious in nature or purpose. Nothing in federal law says that a religious organization surrenders its Title VII protection to hire on a religious basis if it accepts federal funds.

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June 11 2001, Vol. 45, No. 8