The Center for Faith-Based and Community Initiatives
U.S. Agency for International Development
Dear Sir or Madam:
We write to offer our comments on the proposed amendment to 22 CFR Part 205 (“Participation by Religious Organizations in USAID Programs”), as outlined at 76 FR 16712-714.
The Anti-Defamation League (“ADL”) is one of the nation’s leading human relations and civil rights organizations advocating for religious liberty in America. To that end, we work to oppose government interference, regulation, and entanglement with religion and strive to advance individual religious liberty. From our close to 100 years of day-to-day experience serving our constituents, ADL can testify that the more government and religion become entangled, the more threatening the environment becomes for each. In the familiar words of Justice Black: “A union of government and religion tends to destroy government and degrade religion.” Engel v. Vitale, 370 U.S. 421, 431 (1962).
We share the Administration’s appreciation for the vital role religious institutions have historically played in addressing many of our nation’s most pressing social needs, as a critical complement to government-funded programs. The role of religious institutions is particularly important in the field of humanitarian work in developing countries. USAID itself has a long and productive history of partnership with relief organizations affiliated with religious institutions.
In the United States, for decades, government-funded partnerships with religiously-affiliated organizations – such as Catholic Charities, Jewish Community Federations, and Lutheran Social Services – have helped to combat poverty and provided housing, education, and health care services for those in need. These successful partnerships have provided excellent service to communities largely unburdened by concerns over bureaucratic entanglements between government and religion. Indeed, safeguards have protected beneficiaries from unwanted and unconstitutional proselytizing during the receipt of government-funded services. They have also protected the integrity and sanctity of America’s religious institutions whose traditional independence from government has contributed to the flourishing of religion in our country.
We strongly believe that every component of the President’s Faith-Based and Neighborhood Partnerships initiative must maintain essential constitutional safeguards for protecting both religious organizations and beneficiaries. Past experience with government and religiously-affiliated organizations working as partners has demonstrated well that these necessary safeguards do not interfere with these organizations’ ability to provide excellent service to our country’s most needy citizens.
The existing rule governing grants involving USAID funds, 22 CFR §205.1, promulgated by the Bush Administration in 2004, contained a blanket prohibition against the use of federal funds for “acquisition, construction, or rehabilitation of structures:”
USAID funds may not be used for the acquisition, construction, or rehabilitation of structures to the extent that those structures are used for inherently religious activities. …. Sanctuaries, chapels, or other rooms that a USAID-funded religious congregation uses as its principal place of worship, however, are ineligible for USAID-funded improvements.” [22 CFR § 205.1 (d)]
The proposed amendment to paragraph (d) of 22 CFR §205.1 (“Amendment” or “Proposed Rule”) would be fundamentally unwelcome – an unjustified and detrimental step backwards from the existing rule. It contravenes current Establishment Clause jurisprudence, is inconsonant with the President’s November 17, 2010 Executive Order relating to “Partnerships with Faith-Based and Other Neighborhood Organizations” (“Executive Order”), and ignores and contradicts recommendations adopted by the President’s own Advisory Council on Faith-Based and Neighborhood Partnerships on “Reform of the Office of Faith-based and Neighborhood Partnerships” (“PACFNP Recommendations” or “Recommendations”). Moreover, the Amendment would simply be an unwise public policy.
The Proposed Rule is Contrary to Establishment Clause Jurisprudence
By its own terms §205.1 applies to “grants and cooperative agreements.” According to Paragraph (a) of the current §205.1, the term “grantee” means “a recipient of a grant or signatory to a cooperative agreement, as well as sub-recipients of USAID assistance under grants, cooperative agreements, and contracts.” Based on this definition, it is clear that the “funds” encompassed by the Amendment are direct funding either from the government or from entities with the delegated governmental authority to make direct grants.
The U.S. Supreme Court makes clear distinctions between direct and indirect aid. See Zelman v. Simmons-Harris, 536 U.S. 639, 649 (2002). With respect to direct aid, Court precedent prohibits use of direct aid for inherently religious activities or programs that create an unacceptable risk that the aid will be used to advance the religious mission of recipient religious institutions. See Mitchell v. Helms, 530 U.S. 793, 837, 840 (2000); (plurality opinion) (O’Connor, J. concurring in judgment); Bowen v. Kendrick, 487 U.S. 589, 611-12 (1988).
The Proposed Rule would permit direct aid to be used for the “acquisition, construction, or rehabilitation of structures that are used, in whole or in part, for inherently religious activities.” Using direct aid for this purpose would clearly run afoul of U.S. Supreme Court precedent.
The Proposed Rule qualifies that USAID funds could only be used for such purpose where the assistance:
… has a secular purpose, is made generally available to a wide range of organizations and beneficiaries which are defined without reference to religion, has the effect of furthering a development objective, the criteria upon which structures are selected for acquisition, construction, or rehabilitation are religiously neutral, and the selection criteria are amenable to neutral application.
The new, untried, expansive standard is subject to abuse – and raises real concerns about the potential for discrimination and preferential treatment among religions. This new standard is not based on current law, but is, instead, analogous to Justice Thomas’ opinion from the Mitchell decision, which is not the binding precedent from the case. Rather, as outlined above, the precedent is Justice O’Conner’s concurrence in the Mitchell decision, which prohibits direct funding of religious activities.
Furthermore, at issue in the Mitchell case was the readily distinguishable subject of indirect aid for educational materials and equipment to schools, and not direct funding to acquire or construct houses of worship and other religious structures. Moreover, even Justice Thomas’ opinion noted the problem with direct aid for religious activities, stating: “[o]f course we have seen ‘special Establishment Clause dangers’ when money is given to religious schools or entities directly rather than indirectly.” See Mitchell at 818-19 (citations omitted).
The Proposed Rule is Inconsonant with
President Obama’s November 17, 2010 Executive Order
In relevant part, the Executive Order states:
Faith-based organizations should be eligible to compete for Federal financial assistance used to support social service programs … provided that it does not use direct Federal financial assistance that it receives (including through a prime award or sub-award) to support or engage in any explicitly religious activities (including activities that involve overt religious content such as worship, religious instruction, or proselytizing), or in any other manner prohibited by law. (emphasis added).
As outlined above, the Proposed Rule only appears to apply to direct aid. The Amendment would authorize religious entities to the use USAID funds for acquisition or construction of houses or worship or other structures used for inherently religious activity. Funding for structures used for inherently religious activities would be a clear case of “support … for explicitly religious activities.” Therefore, the Proposed Rule would contravene the Executive Order.
The Proposed Rule Ignores and Contradicts the Recommendations of
the President’s Advisory Council on Faith-Based and Neighborhood Partnerships
As noted above, the Proposed Rule would permit direct aid to be used for the “acquisition, construction, or rehabilitation of structures that are used, in whole or in part, for inherently religious activities.” However, this term “inherently religious activities,” was rejected by the President’s Advisory Council on Faith-Based and Neighborhood Partnerships, as “confusing” – at the same time subject to both too broad and too narrow interpretations.
PACFNP Recommendation 5: “Clarify prohibited uses of direct Federal financial assistance,” states:
Existing Federal regulations and an executive order prohibit the use of direct government
aid (e.g., government grants, contracts, subgrants, and subcontracts) for “inherently
religious activities, such as worship, religious instruction, and proselytization.” The Council
recommends that the Administration replace the words “inherently religious activities”
with “explicitly religious activities” in these regulations and in the relevant executive
order, as well as in associated guidance materials.
The term “inherently religious activities” does not appear in the President’s November 17, 2010 Executive Order . The Executive Order refers, instead, to “explicitly religious activities.” This confusing Bush Administration-era standard should not be revived in the very first agency Proposed Rule following the adoption of the Advisory Council’s recommendation that it be rejected.
Further, the PACFNP Recommendations state:
[D]irect federal aid should not be used to pay for activities such as religious instruction, devotional exercises, worship, proselytizing or evangelism; production or dissemination of devotional guides or other religious materials … . Similarly, grant or contract funds may not be used to pay for equipment or supplies to the extent they are allocated to such activities. (emphasis added).
According to the PACFNP Recommendations, grant or contract funds constitute direct aid. The Proposed Rule characterizes the funds in question as “grants”, and “cooperative agreements, which presumably are a form of contact. Therefore, based on the Recommendations, the funds encompassed by the Proposed Rule are direct aid.
Furthermore, a structure used for inherently religious activity would fall within the meaning of equipment. And moreover such structures would be used to conduct religious activities, including religious instruction, devotional exercises, worship, proselytizing or evangelism.
Consequently, the Proposed Rule would directly contradict the Recommendations.
The Proposed Rule Would Be An Unwise Public Policy
By equating houses of worship and other religious structures with secular structures, the Proposed Rule fails to recognize the unique place that religion has in our society and in our constitutional scheme. Religion should be above the fray of government funding, government regulation, and government auditing, not reduced to it.
Furthermore, the Proposed Rule fails to take any steps to prevent government money from flowing to anti-Semitic, racist, or bigoted organizations.
If the federal Establishment Clause stands for anything, it most certainly stands for the principle that our government does not implement taxes or use tax dollars to build houses of worship, chapels and other religious structures. The Proposed Rule is completely contrary to the ideals of religious freedom on which our nation was founded.
We urge you to recall the Proposed Rule for modifications in light of these constitutional and policy arguments.
Director, Civil Rights Division