Mark Souder

Mr. SOUDER

Mr. SOUDER. Madam Speaker, I yield such time as he may consume to my friend, the gentleman from Pennsylvania (Mr. Pitts), who has been a tireless leader since he came to Congress. Many Americans may not realize what a driving force he has been, not only on the issue of fatherhood, but in family values in general, and I am proud to consider him my friend and thank him again for his leadership on this resolution.

Mr. SOUDER. Madam Speaker, I yield myself such time as I may consume. Madam Speaker, first I want to thank the gentleman from Pennsylvania (Mr. Pitts) for his leadership on this issue. It is no secret that children who have fathers in the home tend to do better in school, have more success in relationships, and get into less trouble. I would like also to publicly thank for making our country more aware of this Dr. Wade Horn of the National Fatherhood Institute as well as Dr. David Blankenhorn for their years of leadership on this issue. Although mothers often work tremendously hard to rear their children in a nurturing environment, a mother can benefit from the positive support of the father of her children. A broad array of America's leading family and child development experts agree that it is in the best interests of children and the Nation as a whole to encourage more two-parent, father-involved families. According to a 1996 Gallup Poll, 79.1 percent of Americans believed that the most significant family or social problem facing America is the physical absence of the father in the home and the resulting lack of involvement of fathers in the rearing and development of their children. According to the Bureau of the Census in 1996, 16,993,000 children in the United States, one-fourth of all the children in the United States, lived in families in which a father was absent. The United States is now the world's leader in fatherless families according to the U.S. Census Bureau, and the likelihood that a young male will engage in criminal activity doubles if he is reared without a father and triples if he lives in a neighborhood with a high concentration of single-parent families. According to a Gallup Poll, over 50 percent of all adults agreed that fathers today spend less time with their children than their fathers spent with them. It is not just a problem of fathers who are not ever there but fathers who nominally live in the home and do not spend time with their children. President Clinton has stated that ``the single biggest social problem in our society may be the growing absence of fathers from their children's homes because it contributes to so many other social problems.'' President Clinton continued, ``The real source of the welfare problem is the inordinate number of out-of-wedlock births in this country.'' A growing number of community-based organizations are implementing outreach support and skills-building programs for fathers. I have personally worked with many of these. We recognize that the creation of a better America depends in large part on the active involvement of fathers in the rearing and development of their children. As supporters of this resolution, we urge each father in America to accept his full share of responsibility for the lives of his children, to be actively involved in the rearing of his children, and to encourage the academic, moral and spiritual development of those children. Some argue that nothing can be done, but Governor Frank Keating in Oklahoma has an excellent plan through his human services division leader, Jerry Regire, that illustrates exactly what can be done at the State level and some at the Federal level. Madam Speaker, at the end of my remarks I will include for the Record an article that appeared in yesterday's Washington Post by Barbara Dafoe Whitehead. I would like to just quote at this time a few things from this excellent article. Barbara Dafoe Whitehead has been a leader in efforts to encourage father involvement for at least 15 years. When I first was Republican staff director at the Children Family Committee here in Congress, she worked with us as we tried to raise this issue as we saw the problem exploding in our country. Her column starts: A couple of months ago, amid the Elian Gonzalez controversy, U.S. Attorney General Janet Reno issued a remarkable statement on the nature of fatherhood. The United States, she told a news conference, is a Nation, quote, ``whose law and whose very moral foundation recognize that there is a bond, a special, wonderful, sacred bond between father and son.'' She continued in her column: Take a look at the Father's Day cards in any neighborhood drug store. There alongside the classic greetings for fathers and stepfathers are cards aimed at the alternative dads. For the last few years there have been cards for children to send to their fathers who don't live with them. They carry sentiments like this one: ``I miss you more than ever, Daddy, now that it's Father's Day and even though I'm too far away to hug you with my arms, I just want you to know I'll be hugging you in my heart.'' ``This year at my CVS,'' Barbara Dafoe Whitehead continued, There are two new sections of Father's Day cards. One is under a sign reading ``Like a Father.'' The cards feature such messages as: ``Just wanted to thank you for all the ways you've been a daddy.'' The second section, poignantly labeled ``Anybody,'' contains greetings aimed at a generic good guy, including one Father's Day message for the Good Man who spreads happiness everywhere he goes. These cards suggest that Father's Day might be morphing into Positive Male Role Model Day. There's even a positive male role model card for Mom, a woman who's done all the things that a father usually does. You don't find a parallel range in Mother's Day cards. She concludes this excellent article by saying: As marriage has faded, fatherhood has split along the seam between biology and sociology. But more than anything else, She concludes: This project of trying to cobble together one father from several kinds of daddies is contrary to what kids want and need. Anyone who raises children knows that they are natural social conservatives. They like order, except perhaps in their bedrooms, stability, constancy, permanence and the security of having fathers worry about them rather than having the reverse responsibility of worrying about their father. And as much as they may benefit from and enjoy their relationships with other male role models, they aren't likely to confuse coaches or mentors with the real dad. Retrograde as it may sound, most kids still want one father who fulfills multiple roles all the time rather than several fathers who fulfill a few of the roles some of the time. But today too many kids have to content themselves with the kind of fatherhood that is as paper thin as a sentiment on a Father's Day greeting card. [From the Washington Post, June 18, 2000] Close, But No Cigar (By Barbara Dafoe Whitehead) A couple of months ago, amid the Elian Gonzalez controversy, U.S. Attorney General Janet Reno issued a remarkable statement on the nature of fatherhood. The United States, she told a news conference, is a nation ``whose law and whose very moral foundation recognize that there is a bond, a special, wonderful sacred bond between father and son. . . .'' A tender sentiment? Sure. A true description? Hardly. Reno's statement is remarkable chiefly because of how thoroughly at odds it is with fatherhood as we now know it. America no longer has a ``special'' model of fatherhood-- let alone one buttressed by legal, moral and religious opinion. In a well-intentioned effort to make up for vanishing fathers and disintegrating families, and to give support to the legions of foster fathers and stepfathers and mentors and Big Brothers and role models out there. American law and civil society have diluted the concept of fatherhood until it is almost unrecognizable. What began as a conscientious response to a crisis is hardening into something like the new status quo. We once saw sometime, part-time or once-upon-a-time fathers as inadequate substitutes for a full-fledged father; now we are selling ourselves on the idea that they are all kids really want or need. Unfortunately, while fatherhood has changed, childhood has not. Children still need love, protection, security and, perhaps most of all, stability in their lives. Many of the new varieties of fatherhood don't give that to kids. They're too geographically remote, too emotionally distant, too legally fuzzy or circumscribed, or too fleeting to do so. No one would dream of trying to convince children that their mother could be replaced by several different kinds of mothers, all playing different roles at different times in their lives. But that is exactly what we are communicating to the many children whose fathers are absent, distant or unknown. Take a look at the Father's Day cards in any neighborhood drugstore. There, alongside the classic greetings for fathers and stepfathers, are cards aimed at the alternative dads. For the last few years there have been cards for children to send to fathers who don't live with them. They carry sentiments like this one: I miss you more than ever Daddy, now that it's Father's Day/and even though I'm too far away to hug you with my arms, I just want you to know I'll be hugging you in my heart. This year, at my local CVS, there are two new sections of Father's Day cards. One is under a sign reading ``Like a Father.'' The cards feather such messages as: Just want to thank you for all the ways you've been a daddy. The second section, poignantly labeled ``Anybody,'' contains greetings aimed at a generic good guy, including one Father's Day message for the Good Man who spreads happiness everywhere he goes. These cards suggest that Father's Day might be morphing into Positive Male Role Model Day. There's even a Positive Male Role Model card for Mom, A woman who's done all the things a father usually does. You don't find a parallel range of Mother's Day greetings. Despite all the dramatic changes in women's lives over recent decades, little has occurred to shake what Janet Reno might call the moral and legal foundations of motherhood. Consider how different the Elian case would have been if it had been the boy's father who had died, and his mother who wanted him back. Few would have questioned the mother's right to her shipwrecked son. To state what is painfully apparent to many children today, the bond to a mother is rock solid, but the bond to a father isn't. Although both motherhood and fatherhood have both biological and sociological dimensions, these dimensions are virtually fused in motherhood, especially during a child's early years. To an infant, a mother's body is both life and food, nature and nurture. This isn't true of fatherhood. Biologically, a father is a one-minute parent. (Consider sperm donors.) Indeed, a man can become a father and be the last to know, sometimes years after the fact. What's more, his biological contribution does not naturally dictate his sociological role. Sociological fatherhood is a lot like being a designated driver. Men can choose to take on the role and the effort it involves, either through the institution of marriage or through other kinds of ties to the mother and her family--and they can also choose not to. Because of this more tenuous connection, fatherhood is universally problematic. All societies face the challenge of connecting biological and sociological fatherhood in some fashion in order to make sure children are protected and supported over time. Within living memory, of course, there was a single prevailing model of fatherhood in America. In it, a father was connected to his children by three ties. The first was blood, or its legal equivalent, adoption. The second was a shared household with the mother of his biological or adopted children. The third was marriage to the mother of these children. In this model, marriage was the most important of the three because it bound the other two ties together. With the new dads, one or more--or even all--of these ties may be missing. For example, some men have a blood tie to their children but have never had a residential, marital, or any other meaningful tie to them. Others have a blood tie to their children but are divorced from the mother and no longer share the children's primary residence. Still others are married stepfathers who live with their wife and her biological children, voluntarily contribute to supporting and raising the children but have no blood tie to them. A fast- growing father group includes cohabiting men who live with the children but are not married to their mother; some have blood ties to the kids but others are ``stepfathers'' who are unrelated. And then there are the exes--ex-stepfathers, ex- foster dads or ex-boyfriends--who have no biological or legal tie to the children but once played some kind of father role in their lives. There are also the father figures--mentors, Big Brothers, coaches, clergy--who have no biological, legal, marital or residential tie to the children. This tangle of father types creates all kinds of problems over nomenclature--what do you call the man who lived with your mother for a while and still comes by now and then to take you to ballgames?--which probably explains why ``Anybody'' is a growing niche is greeting card market. As marriage has faded, fatherhood has split along the seam between biology and sociology. For example, the state defines the biological male parent as the father, and if paternity is established--either voluntarily by signing a birth certificate or involuntarily with a DNA test--he can be compelled to support his child. Other forms of paternal support and contact may be desirable, even encouraged, but nowhere does the state require a biological father to do anything more than enter into a financial arrangement. This is an essential but breathtakingly minimalist model of fatherhood. It defines daddy down to a name on a birth certificate and a signature on a child-support check. Other segments of the society, from families to churches to child advocates, define fatherhood functionally as the provision of constancy, caring and affection. Men other than a biological father--stepfathers, co-habiting fathers, unrelated cohabiting partners, neighbors and male relatives and friends--can play the role of the social father. So can male mentors who are not romantically involved with the child's mother but volunteer for the role of social father out of the goodness of their hearts. In a best-case scenario, you can patch together both kinds of father and come close to meeting the requirements of full- fledged fatherhood. A biological father contributes money and perhaps some time; a sociological father or two picks up the slack. And, indeed, for some fortunate children, a combination of fathers adds up to more paternal time, money, and attention, not less. But face it--in many more cases, these attempts to attach children to a variety of fathers aren't panning out. Fathers are now increasingly less likely to live with their biological children--35 percent of children today live apart from their biological fathers. And when they live apart, the father's involvement tends to diminish over time. As for the idea that we can replace biological fathers with father- surrogates, it's a comforting notion but recent experience suggests just how hard it is to pull off. Mentoring programs are particularly struggling to keep pace with growing caseloads of fatherless boys, a task requiring endless recruitment campaigns, background checks and training sessions and still falling short. As it turns out, finding and keeping a father for every child who lacks one is a tall order. It takes money and lavish amounts of effort and invention--not to mention DNA tests, hospital birth registration programs, child support orders, visitation agreements, public service announcements and community fatherhood campaigns--to scrape together what are still more term-limited and fleeting forms of fatherhood. As marriage has faded, fatherhood has split along the seam between biology and sociology. But more than anything else, this project of trying to cobble together one father from several kinds of daddies is contrary to what kids want and need. Anyone who raises children knows that they are natural social conservatives. They like order (except perhaps in their bedrooms), stability, constancy, permanence and security of having fathers worry about them rather than having the reverse responsibility of worrying about their father. And as much as they may benefit from and enjoy their relationships with other male role models, they aren't likely to confuse coaches or mentors with a ``real dad.'' Retrograde as it may sound, most kids still want one father who fulfills multiple roles all of the time rather than several fathers who fulfill a few roles some of the time. But today, too many kids have to content themselves with a kind of fatherhood that is as paper-thin as the sentiment on a Father's Day greeting card. Madam Speaker, I reserve the balance of my time.

Mr. SOUDER. Madam Speaker, I ask unanimous consent that all Members may have 5 legislative days within which to revise and extend their remarks on H. Res. 522.

Mr. SOUDER

Mr. SOUDER. Mr. Speaker, I move to suspend the rules and pass the bill (H.R. 2778) to amend the Wild and Scenic Rivers Act to designate segments of the Taunton River in the Commonwealth of Massachusetts for study for potential addition to the National Wild and Scenic Rivers System, and for other purposes, as amended.

Mr. SOUDER

Mr. SOUDER. Madam Speaker, I ask unanimous consent that all Members may have 5 legislative days within which to revise and extend their remarks and include extraneous material on H.R. 3084.

Mr. SOUDER. Madam Speaker, I move to suspend the rules and pass the bill (H.R. 3084) to authorize the Secretary of the Interior to contribute funds for the establishment of an interpretative center on the life and contributions of President Abraham Lincoln, as amended.

Mr. SOUDER

Mr. SOUDER. Mr. Chairman, I want to make it clear that I do not oppose designating national monuments, I do not oppose the Antiquities Act, but I do oppose the abuse of power. This is not taking these lands back to the people. Quite frankly, whether or not they are national monuments or not national monuments, they belong to the people. Some Presidents such as Theodore Roosevelt have used the Antiquities Act to preserve large threatened areas. But when we look at the previous examples of that like the Grand Canyon, they were clearly being privatized and degraded. It was being debated in Congress. There was public outrage. But in the case of President Clinton's new monuments, these monuments already are Federal lands. The fact is that if they are being degraded, it is under this administration. FDR designated previously the highest number of public lands. In four presidential terms he designated 2.5 million acres. This President has already done 4 million unilaterally. It is clear that we need to and will continue to expand national monuments and parks. It is clear that our crown jewel parks are already in existence. And so now the question is really, are we going to adequately fund the existing parks plus as we add to this system, where will they be and what will the funding priorities be? We heard earlier that this is about invasive species and grazing questions, but these new monuments are all in the West, where they already have at least 25 percent federally owned lands, in some cases 50 percent and in some the proposals are in States where it goes up to 60 percent. East of the Mississippi, we have lands that already have willing sellers that are clearly either culturally, naturally, or recreationally valuable for the public sector but we have willing sellers. But because the President has unilaterally designated additional lands in States where they already have 25 to 65 percent Federal lands, money will not be available for other places in the country where there are natural, cultural and recreational opportunities. How is it fair to let a lame duck President unilaterally, in one year, exceed any other President's designation, including the two Roosevelts, who had, in FDR's case, four terms, and tie the hands of the Committee on Appropriations where we cannot meet the needs of existing parks or the demands we have in other parts of the country.

Mr. SOUDER. Mr. Chairman, I move to strike the last word. Mr. Chairman, I rise in opposition to this amendment. This budget is very tight. We have many needs to balance within the interior budget and the overall budget, and we must not take funds from Social Security and Medicare because we are afraid to make tough choices. My opposition is based on budget grounds. In the past, I have helped lead the opposition to NEA on a number of grounds which, under the direction of Bill Ivey and the new guidelines passed by Congress, has corrected a number of its past problems. No longer are NEA funds so concentrated on the major cities of this country, where arts resources are already plentiful. This has also helped alleviate the cultural elitism of the past. There has also been major progress in the area of performance artists, where the only art is in the eyes of the artist. If art is to be public funded, it needs to be more majoritarian or consensus art. If the NEA wants me, my family, the people of Indiana, and America to pay for it, it should be something appreciated by others not just the artists. Probably Americans are most familiar with the controversies around the funding of morally offensive art by the NEA. It is unfortunate that conservatives, such as myself, do not speak up often enough about the importance of arts to the soul. A society without artistic expression would be gray, boring, and depressing. But publicly funded art should not gratuitously insult the deeply held religious beliefs of the American public. The Reverend Donald Wildmon and Pat Trueman of the American Family Institute have performed a tireless public service in making sure Americans and Congress aware of where our tax dollars are spent. It is my belief that the new director and the new rules of the NEA help make progress on limiting morally offensive art funded by our tax dollars. I was shaken, as others have been, by several cases where NEA funds have gone to organizations in the last few years that have either performed or provided a venue for art that attacks Christian beliefs in an aggressive calculated way. The clear goal was to cause insult and offend, not to inspire the soul or cause reflection. They are crudity designed to shock. I decided to study the possible NEA involvement further, and this is what I discovered. And it was not enough just to argue that the funding was not for the individual projects because money can be fungible and it can be used to send tacit approval to the organizations that performed it. There was recently a play entitled ``The Pope and the Witch.'' It depicted the Pope, called John Paul II, as a heroin-addicted paranoid, advocating birth control and legalization of drugs. The NEA provided funding to the Irondale Ensemble Project and provided funding for the New City, where the play was performed. But here is the rest of the story. The $15,000 grant to the Irondale Ensemble was for a musical theater piece of ``The Murals of Rockefeller Center.'' The date was prior to the morally offensive anti-Catholic about the heroin-addicted Pope. The NEA did not fund the offensive play, nor did they know such a play would later be performed by this organization. The real test is next year. Now they know this theater has stuck its finger in the eye of the American people. Now there should be no more funds. The same is true for the theater for New York City. Their grant was to fund education programs. It was given before the disgusting, anti- Catholic play about a heroin-addicted Pope. While NEA did not know that this organization was going to provide a venue for an anti-Catholic play when their grant was given, they now know. No more funds. The Brooklyn Museum in New York is a famous institution. It was not a surprise that NEA would have supported an arts program at that museum. After that funding was granted, the Brooklyn Museum apparently decided that their best hope for raising money was to insult Christians to gain attention. A Virgin Mary made out of dung certainly did that. No NEA money was used for that art. NEA money to the Brooklyn Museum had been given earlier, so it was not moral support or fungible money. But now we know they will deliberately insult Christians with shock art. No more funds. Another case raised by critics actually started in 1996. In this case, ``Corpus Christi'' promoted itself as a play about Christ being a homosexual who had sex with the apostles. Clearly, not something taxpayers would want to support. But once again the facts do not show that NEA supported this play. In 1996, the Manhattan Theatre Club received a grant to develop Terrence McNally's new play ``Corpus Christi.'' Here is the application that described this proposal. I have read it and gone through the application. Here is all that it said. ``Spirituality has been one of the major themes in Terrence McNally's most recent plays at MTC. His next play, Corpus Christi, will be an examination of good and evil. He will use certain miracles in the life of Christ as inspiration for the story, which will have a contemporary setting.'' In case my colleagues missed the part about Christ being a homosexual and having sex with his apostles, it is because it is not there. That is why Congress now requires more in-depth descriptions. But that is not even the rest of the story. The Manhattan Theatre Club then wrote to cancel this grant and asked to transfer the funds to ``Collected Stories.'' I have reviewed the letter exchanges that clearly show the grant transfer. Nothing then happened for 2 years. In 1998, McNally completed the disgusting shock art play, which was performed without NEA funds. Many artists today would rather use their creative powers to mock God and try to provoke outrage from people who love and honor our Creator rather than develop art. Our anger and legitimate concern that no tax dollars provide funding, direct or indirect, or even in the form of moral support, is completely justified. But we also, especially as Christians, have a moral obligation to stick with the truth. NEA did not fund this art, directly or indirectly.

Mr. SOUDER

Mr. SOUDER. Mr. Speaker, I move that the House do now adjourn.

Mr. SOUDER

Mr. SOUDER. Mr. Speaker, on June 1, I received a letter that was written by seven members of the biology department and one professor of psychology from Baylor University in response to my co-hosting a recent conference on intelligent design, the theory that an intelligent agency can be detected in nature, sponsored by the Discovery Institute. The professors denounced intelligent design as pseudo science and advocated what is bluntly called the materialistic approach to science. Mr. Speaker, I am appalled that any university seeking to discover truth, yet alone a university that is a Baptist Christian school, could make the kinds of statements that are contained in this letter. Is there position on teaching about materialistic science so weak that it cannot withstand scrutiny and debate? Intelligent design theory is upheld by the same kind of data and analysis as any other theory to determine whether an event is caused by natural or intelligent causes; just as a detective relies on evidence to decide whether a death was natural or murder, and an insurance company relies on evidence to decide whether a fire is an accident or arson. A scientist looking at, say, the structure of a DNA molecule goes through exactly the same reasoning to decide whether the DNA code is the result of natural causes or an intelligent agent. Today, qualified scientists are reaching the conclusion that design theory makes better sense of the data. Influential new books are coming out by scientists like molecular biologist Behe, Darwin's Black Box, the Free Press, and mathematician William Dembski, the Design Interference, Cambridge University Press, which point out the problems with Darwinian evolution and highlight evidence for intelligent design in the university. The tone of the letter I received seems to suggest that my congressional colleagues and I were unsuspecting honorary co-hosts in a conference on intelligent design. That is not the case. My good friend, the gentleman from Florida (Mr. Canady), chairman of the House Judiciary Subcommittee on the Constitution has considered holding a congressional hearing on the bias and viewpoint discrimination in science and science education. Ideological bias has no place in science and many of us in Congress do not want the government to be party to it. The gentleman from Florida (Mr. Canady) approached several people, including the Discovery Institute, about plans for such a hearing. The people at Discovery suggested that instead we allow them merely to put on a modest informational briefing on intelligent design. That is exactly what happened, and we regarded the result as very valuable. Nevertheless, many of us continue to be concerned about the unreasoning viewpoint discrimination in science. This letter dismisses those who do not share the philosophy of science favored by the authors as frauds. It is ironic, however, that the authors do not ever actually get around to answering the substantive arguments put forward by people at the Discovery Institute. The authors support a philosophy of science they call materialistic science. The key phrase in the letter is that we cannot consider God's role in the natural phenomenon we observe. Yet this assumption is merely asserted without any argument. How can the authors of this letter be so confident that God plays no role in the observable world? Once we acknowledge that God exists, as these professors presumably do since they teach as a Christian university, there is no logical way to rule out the possibility that God may actually do something within the universe He created. In addition, the philosophy of science the authors talk about is just that, a philosophy. It is not itself science, even according to the definition of science put forward by the authors themselves. They state, for example, that all observations must be explained through empirical observations. I am not sure what that means but I do know this: This statement itself is not verifiable by observation or by methods of scientific inquiry. It is rather a philosophical statement. If they prefer it to the alternative that they suppose it advanced by the Discovery Institute folks, then the preference itself cannot be based on science. It is a difference of philosophy, but they are biologists not philosophers. They have no special authority in philosophy, even the philosophy of science. Even more egregiously, they say that God cannot be proved or disproved. Now there is a philosophical statement for you. Of course many philosophers agree with it, but there are philosophers of stature who disagree with it, too. Why should the philosophical viewpoint of a group of biologists enjoy privileged status? And then there was Darwinism. This letter treats Darwinism as a straightforwardly scientific position despite the criticism advanced by many responsible, informed people that Darwinism itself rests not on demonstrable facts but rather on controversial philosophical premises. In other words, serious people make a case against Darwinism, precisely the case that Baylor's biologists themselves are trying to make against intelligent design. Yet the Baylor biologists simply ignore these criticisms. One senses here not a defense of science but rather an effort to protect, by political means, a privileged philosophical viewpoint against a serious challenge. In digging into this matter further, it turns out that an international conference related to this topic, the Nature of Nature, was held recently at Baylor University. It was hosted by the Polanyi Center at Baylor and sponsored by the Discovery Institute and the John Templeton Foundation. A number of world-class scientists participated in the event, and contrary to the assertions made in this letter, advocates of intelligent design, as well as materialism, presented their ideas publicly. The authors of this letter have been part of an intense effort to close down that center, which was founded in part to explore these issues. I would like to insert the rest of this statement in the Record, as well as the letter from the professors at Baylor University. I would like to reference the words of the Israeli statesman, Shimon Peres: He said, ``Science and lies cannot coexist. You don't have a scientific lie, and you cannot lie scienifically. Science is basically the search of truth--known, unknown, discovered, undiscovered--and a system that does not permit the search for truth cannot be a scientific system. Then again, science must operate in freedom. You cannot have free research in a society that doesn't enjoy freedom. . . . So in a strange way, science carries with it a color of transparency, of openness, which is the beginning of democracy . . .'' Dr. Bruce Alberts, President of the National Academy of Sciences made a recent speech where he said ``Scientists, as practitioners, teach important values. These include honesty, an eagerness for new ideas, the sharing of knowledge for public benefit, and a respect for evidence that requires verification by others. These ``behaviors of science'' make science a catalyst for democracy. Science and democracy promote similar freedoms. Science and democracy accommodate, and are strengthened by, dissent. Science's requirement of proof resembles democracy's system of justice. Democracy is buttressed by science's values. And science is nurtured by democracy's principles.'' There seems to be a tension between science as democratic, welcoming new ideas and dissent--and science as a lobby group, seeking to impose its viewpoint upon others. As the Congress, it might be wise for us to question whether the legitimate authority of science over scientific matters is being misused by persons who wish to identify science with a philosophy they prefer. Does the scientific community really welcome new ideas and dissent, or does it merely pay lip service to them while imposing a materialist orthodoxy? Only a small percentage of Americans think the universe and life can be explained adequately in purely materialistic terms. Even fewer think real debate on the issue ought to be publicly suppressed. I ask my colleagues to join with me in putting aside unfounded fears to explore the evidence and truthfulness of the theories that are being presented by those on both sides of this debate. I want to thank Philip Johnson of the University of California at Berkeley. Robert * * * of Princeton University, and others is drafting this response. Baylor University, June 1, 2000. Dear Congressman Souder, We became aware of a meeting on May 10, 2000 that you and other legislators attended with members of the Discovery Institute from their website. According to the website, the main topics of the meeting involved the scientific case for design, the influence of the Darwinian and materialistic worldview on public policy, and how intelligent design will affect education. As citizens concerned with science education, we wish to give you the perspective of mainstream scientists and science teachers. intelligent design is not science It is an old philosophical argument that has been dressed up as science. We and other mainstream scientists refer to it as intelligent design creationism. Some have referred to it as `creeping creationism' due to the methods used by its proponents to sneak creation science into the classroom. The hypothesis of intelligent design is that living creatures are too complex to have arisen by random chance alone. However, we have yet to see any scientific, empirical data to support this hypothesis. Some of the proponents use statistics to show the improbability that living creatures have arisen by random chance, but this does not say that living things could not have arisen through such means. The members of the Discovery Institute stress that the idea of design is entirely empirical. If this is true, then their data should be presented to the scientific community. If mainstream scientists deem the data as evidence for design, then your office will be flooded with messages from professional scientists asking for more funding for design research. However, as the supporters of intelligent design have never openly presented their data, we have to conclude that either there is none or that it does not provide evidence for design. the proponents of intelligent design do not operate as legitimate scientists In science, all research must go through some sort of peer review. A scientist requests funds from various agencies, such as the National Science Foundation (NSF), which requires the scientists to give a detailed explanation of the research to be conducted. After conducting the research, the scientist then publishes or presents his/her findings in peer reviewed, scientific journals or at meetings sponsored by scientific organizations. In this way, other scientists can critically study the research, how it was conducted, and if its conclusions are correct. Proponents of intelligent design do none of this. Their funding comes from think tanks such as the Discovery Institute which have their own agenda. They do not publish in scientific journals nor present their ideas at meetings sponsored by scientific organizations. Rather, they publish books for the general public which go through no sort of review process except by editors at publishing companies who are often concerned more with the financial gains and less of the scientific merit of the book. intelligent design does not belong in the science classroom. Because intelligent design has no scientific, empirical data to support it, we see no reason why it should be allowed into the science classroom. The proponents of intelligent design would say that they should have equal time in the classroom as a competing theory against Darwinism. However, in science, a theory isn't given equal time, it earns equal time. Ideas should be allowed into the science classroom only when they have amassed so much empirical evidence as to gain the support of the scientific community. Intelligent design has not risen to this level. intelligent design could have a serious negative impact on science education and research. Much of the proposed research from intelligent design deals mainly with understanding the personality and limits of the designer. Within the intelligent design paradigm, a possible answer to any scientific question is ``That's how the designer wanted it''. This does not answer anything at all. How are science teachers to inspire curiosity into the natural world when the answer to every question is `That's just how it is', Also, we fear that future school board administrators would cut funds for science education because the role of science will have shifted from an exploration of the natural world to an exploration into the mind of a supposed designer. This could also have a negative impact on scientific research. Future Congresses with the need to balance budgets may cut funding to the National Science Foundation, Center for Disease Control, or National Institute for Health for the same reason as the school board administrator. the members of the discovery center are misrepresenting materialistic science. The current philosophy of science states that all observations must be explained through empirical observations. Materialistic science does not say that there is no God. Rather, it says that God, due to His supernatural and divine nature, cannot be proved or disproved, thus we cannot consider His role in the natural phenomena we observe. Therefore, the existence of God is not a question within the realm of science. Many scientists have a strong belief in a divine God and do not see any conflict between this belief and their work as scientists. materialistic science has greatly increased the american people's quality of life. Considering that materialistic science has been the predominant paradigm of science for about 150 years, let us look at life in America before and after the 1850's. First, all races were certainly not considered as equals. Women were considered inferior to men in every way. Also, the number of cause of death in women was giving birth. The infant mortality rate was equal to any Third World nation today. People died of diseases such as polio, small pox, and influenza. Mentally ill people wee locked up in institutions that resembled the horrors of the Inquisitions. The average life expectancy for people born in the 1850's was in the early sixties. Since the advent of materialistic science we have shown that all the races are much more alike than they are different. Medical health for women has improved to the point that couples rarely worry if the woman and/or child will die during birth. Also, women have become more empowered than any other time in human history. Diseases such as polio and small pox have essentially been wiped out in America. Also, due to improved sanitation and health regulations, typhoid, cholera, and malaria, are unheard of in America today. Mental illness is seen as a treatable, if not curable, disease. Children born in the 1990's could expect to live to be ninety years old. The proponents of intelligent design are making an emotional appeal and not a scientific argument. The proponents of intelligent design are trying to use meetings such as the one that you attended to make an emotional plea to the general public about the ills that face our society. They would have us believe that all of our problems in society can be blamed on Darwinism. As a U.S. Legislator, we are certain you are aware of the many problems, great and small, facing America. As any concerned citizen, we watch the news and wonder why is there violence in the schools, why does racism and intolerance persist, and why can't the greatest nation in the world feed and house all of its people? The answer to these questions is neither Darwinian evolution nor materialistic science. Rather materialistic science could be the cure for many of society's problems. We thank you in advance for considering the above information and for seeking more complete information regarding this important issue affecting the congressional debate regarding science education programs in this country. Sincerely, Cliff Hamrick, Biology Department, Baylor University. Robert Baldridge, Professor of Biology, Baylor University. Richard Duhrkopf, Associate Professor of Biology, Baylor University. Lewis Barker, Professor of Psychology & Neuroscience, Baylor University. Wendy Sera, Assistant Professor of Biology, Baylor University. Darrell Vodopich, Associate Professor of Biology, Baylor University. Sharon Conry, Biology Department, Baylor University. Cathleen Early, Biology Department, Baylor University.

Mr. SOUDER

Mr. SOUDER. Mr. Chairman, I thank my Hoosier colleague and friend for yielding me time. Mr. Chairman, I want to lend my support to the gentleman's amendment. I agree with the offset, and I believe it is commendable that the gentleman has an offset. But I also think that there are few issues that are of importance to our education system as much as where we are going to get the math, science and technology teachers for the next generation. We do job training through the Federal Government, we do transitions' training through the Federal Government, and we do teacher training through the Federal Government. This crosses all different categories. This is not a new innovation. I hope that if we cannot get it done today, we can move it through the authorizing committee. I think it is a great idea. Our only hope really to address this question is how we can get people moving from the private sector, many of whom have made their money in the private sector and may be willing to come back and teach our young people, or we will not able to compete worldwide. Mr. Chairman, I thank the gentleman for his leadership.

Mr. SOUDER

Mr. SOUDER. Mr. Speaker, I thank the gentleman from California (Mr. McKeon) for his excellent leadership in the higher Committee on Education and the Workforce and also our distinguished ranking member for his years of work in this committee as well. Mr. Speaker, I rise today to talk about two clarifications and one addition to the Higher Education Technical Amendments to the so-called Souder amendment to the Higher Education Act. This amendment probably has caused more controversy on our college campuses than all but few things in the Higher Education Act, and this is an attempt to clarify some things that I believe were misunderstood or had implementation problems at the Department of Education. First, let me thank former Congressman Gerald Solomon. For years he led this effort to hold students accountable for drug use if they were going to use taxpayer money to fund a student loan. What my amendment attempted to do was a very simple process and that said, if one abuses drugs, that is if they are convicted, not alleged but if they are convicted of using drugs or dealing drugs, they would lose their student loan for one year. If they went through drug treatment and took a drug test and passed it twice, they could get back even within that year. Our goal was not to get kids tossed out of college. Our goal was to get kids off drugs. If it happened twice, they lost their subsidized student loan for two years. If it happened three times, they are out. For drug dealing it was one and two. Now this caused a big rhubarb. The question was, is this punishing people who have already been punished once? As if our courts actually do more than slap on the wrist. But besides that, the question is not punishment; the question is treatment. How do we move to prevention, and how do we get those who are abusing drugs on to treatment and to help them with their problem? There is also the question as taxpayers, is why should we be underwriting students who are abusing and convicted of drug use in college? In my five trips to Colombia, I have looked and listened to leaders in Colombia, leaders in Mexico. I have heard people back home and around the country say there is only so much we can do about interdiction. What is being done in America about the drug problem? This is an effort to actually do prevention and to hold people accountable. Now there were a couple of problems in implementation that occurred in the Higher Education Act. One, there was limited pre-testing of the question. Secondly, the poorly framed question caused tremendous confusion in incoming freshmen and others in 1999. Hundreds of thousands of students left the question blank, which would have stopped the system to enforce it and yet they cannot have questions left blank. There was also no auditing. There was no checking of those who said that they had not been convicted of a drug crime, or who left it blank, which is irresponsible enforcement. It is basically a toothless bill without that. Now there was a misunderstanding as well. All the way through the whole debate, I never said anything differently than what I said today, which is that if one is going to take a student subsidized loan they should be held accountable. Yet for some unusual reason, and I am not faulting them for doing it because it was their decision to do so, the Clinton administration interpreted this to mean that anybody prior to going into college who had been convicted once, twice, or three times of a drug crime was, therefore, either in violation of either clause one, clause two or clause three, which meant that many teenagers around the country who had been convicted of a drug crime all of a sudden were either being suspended for 1 year, 2 years or out on drug loans. It meant people that were coming back in mid-life or adulthood all of a sudden were not eligible, theoretically, at least for student loans. There was nowhere in any record that suggested that any of us were advocating a reachback provision. The language was very explicit, I believed, which is if one takes taxpayer dollars, then they are expected to behave legally. Now, what we need to do is to try to reach to those students who often are young people or middle-aged people who are coming back, who have had a tough time in life, who have been convicted of a drug crime, and now they want to go to college. The goal here is not to punish them. I am a big supporter of GEAR UP, where we have technical amendments in this bill related to GEAR UP, and there is an unfortunate amendment later in the Labor HHS bill that would strike some of the clauses in GEAR UP which I oppose because I believe it is important to reach out to low-income students. We also need to have accountability. What these amendments do are, one, first off one is only covered when they receive the loan and they are accepted into a university, or coming back after an absence. In other words, there is a short period of time while one is not in school, where they would be covered. Also, if it is a continuous process, presumably one would be covered. In other words, if one took the January semester break off or a summer break; but they are in a continuous flow of college, they would be held accountable in that period. But the goal here is not if one drops out for 5 years to cover that period or to cover their whole years in high school. The goal is while one is clearly going to college and has been approved for a student loan. Secondly, we have made it clear now that we have had our trial run. If one leaves this blank, they will not get a loan until they fill out that question. Now, a third part that the gentleman from California (Mr. Gary Miller) added, which I think was a very wise additional amendment, was to make sure that all students understand that it is clear to the information to the Department of Education that if one is convicted of a drug crime, they cannot get a student loan, or they will be kicked off of a student loan. Now lastly, we had some discussions with the Department of Education. I want to make it clear that we did not put some amendments in because I believe they are moving ahead on this. One is to get the question better drafted. I am encouraged, but that question should be pre-tested better than they have pre-tested it in the past because as a parent whose kids have gone through college, the forms are very confusing; and it is very important if they are going to be held accountable to have that question clear. Secondly, an auditing process, because without an auditing process this amendment is toothless. If we are going to attack the drug problem in this country and hold people accountable and help kids get into treatment and get their lives straightened around, there has to be an auditing and accountability process. We are either serious about the drug problem or we are not. We need to make sure that we do not just focus on interdiction, which I believe is important, or border control, which I believe is important, or legal accountability, which I believe is important, but to have real prevention and treatment programs; and these amendments will help this become an even better process and hopefully help many students in this country understand that this problem is real.

Mr. SOUDER

Mr. SOUDER. Mr. Chairman, I thank the gentleman for yielding me this time. One thing that has not been pointed out enough is this training center is the only one where it teaches in Spanish. Our other courses around the country reach the other echelons of leadership. This has tried to take our message of training, as well as human rights training, down to the lower levels of the military, to spread it through newly-democratic countries in Spanish, with instructors from those countries to build that credibility. We also lost some message here as to why we have this school. In Colombia, yesterday's Los Angeles Times: Elvia Cortes had a bomb put around her neck and was told that it would explode the next day. It did. She is dead. The person who attempted to remove this bomb had his hands blown off and he bled to death in a helicopter. Because of our drug crisis and the amount of drugs we are purchasing in this country, we have threatened democracies throughout the world. We need to teach human rights, but we also need to work with those militaries and those democratic governments to do what they did in Guatemala, which is, graduates of the School of the Americas went after another graduate because the behavior he exhibited was intolerable to us. So I praise this school for the advances they have allowed throughout the world.

Mr. SOUDER

Mr. SOUDER. Mr. Chairman, I yield the balance of my time to the gentleman from Ohio (Mr. Regula).

Mr. SOUDER. Mr. Chairman, I offer an amendment.

Mr. SOUDER. Mr. Chairman, I yield myself such time as I may consume. Mr. Chairman, before I begin to explain my amendment, I want to commend the gentleman from Alaska (Mr. Young), our committee chairman on the Committee on Resources, and the ranking member, the gentleman from California (Mr. George Miller), for their work in crafting this bill. As a cosponsor of this fine piece of legislation, I strongly support this epic bill. My amendment is very simple. It merely clarifies that funds provided under CARA are intended to supplement and in no way detract from annual appropriations for the National Park Service. We are going to hear a lot of debate through tonight and possibly into tomorrow that is very contentious, and I as a strong conservative would like to make a brief statement in clarifying both my position regarding this bill and this amendment. A fundamental question is, what is in fact a conservative? I believe a key, fundamental part of being a conservative is conservation. That is what we do as conservatives: We appreciate our heritage, our natural beauty in America, whether it is the wonder of parks like Yellowstone and Yosemite and Glacier and the Grand Canyon; the rivers, the wildlife, which illustrate the wonder of intelligent design of our world. The cultural heritage of America, the Independence Halls, the Gettysburgs, help us understand who we are as a people. The national lake shores like the Indiana dunes, or the amazing combination areas like the Golden Gate recreational area, where we have cultural and natural beauty, that is the legacy that we want to pass to our children and to our children's children. We need to have a passion for that heritage. That is part of being a conservative. We can argue how much the government should own, how much regulation there should be. But the fundamental thing that we want to pass on in generations is a sense of who we are, both in our natural and cultural beauty. The reason that is important is there are charges made that those of us who back CARA are somehow trying to gut some of our national mission, that this is a zero sum game; if funds move to the State and local level, that in fact we would reduce the Federal funding for our National Parks. I really respect the difficult job that our chairman of the Subcommittee on Interior of the Committee on Appropriations has every year in his difficulty meeting the $13 billion backlog in facilities and $26 billion in operations in the National Parks. I think it is important to make a statement in this bill that CARA is meant to be a supplement to what we are doing in the National Parks, and that it is part and parcel, part of and not just similar to the principle of the social security trust fund, the gas tax. When we say we are going to take revenue for a particular function, in this case environmental, or whether it is hunting and fishing fees, they should be used for what they are intended to be collected for. In the pattern over the last number of years, when we have had a deficit we have diverted these funds. This bill is not intended to take the funds from Interior, but rather to add a supplement to environmental legislation. Let me make one other point. I come from Indiana. I understand the frustrations of a lot of the Western States with high public lands. We have 3 percent public ownership of land in Indiana, 2 percent Federal. I have none in my district. I sought out the Committee on Resources, not because of anything directly related to my district, but because I am a strong believer in preserving our natural and historic heritage. We need a program like CARA, because our only wildlife programs are State parks, county parks. That is where our recreation funds are. We see our dollars constantly come to Washington and be diverted into the West. We need to have these things in the Midwest, as well. At the same time, the people of northeast Indiana, while we strongly want additional dollars, our tax dollars, for things to be matched in our local areas, we also support our National Park system. Almost every family, or a high percentage of the families, in my district will visit at least one or probably multiple of our kind of classic National Parks, as well as many regional National Forests, fish and wildlife settings, and national lake shores and other things that fall under our public land system. But this amendment is essential to say two things: One, we want to preserve our National Parks, and this is not meant to reduce any dollars in that area; secondly, that we need additional dollars to build up our State and local resources, because many of us, that is our primary way of appreciating the nature and our cultural heritage. Mr. Chairman, I reserve the balance of my time.

Mr. SOUDER

Mr. SOUDER. Mr. Speaker, I would like to join with those who are taking a few minutes today to remember and pay tribute to those Armenians who lost their lives and national identity during one of history's most tragic examples of persecution and intolerance, the Armenian genocide of 1915 to 1923. Many Armenians in America, particularly in Indiana, are the children or grandchildren of survivors. In Fort Wayne, we do not have very many Armenians, to be precise, one, sometimes two. But my friend Zohrab Taizan is a classic example of many of the Armenians in America whose family was chased out of Turkey and down into Lebanon, who moved around, having, as a child, to live in a tent, because he saw his family members slaughtered and chased from their homeland; coming over to America where they had a chance to succeed with an American dream, as Armenians actually throughout world history who have been persecuted because of their successes as merchants, and often their very success has led to persecution in many lands that they have been over time. He came to America to the Indiana Institute of Technology, like many other foreign students who came in, learned engineering, and became a very successful engineer in our hometown. I first saw a slide presentation on the facts of this terrible genocide about 20 years ago when I was a young businessman in Fort Wayne belonging to the Rotary Club. Mr. Zohrab Taizan made a presentation that will forever be burned into my mind about the terrible persecution; not just discrimination and not just random persecution, but the attempt to exterminate an entire people. The facts, as we have heard a number of times, but I think it is important that we have these burned into our head, on April 24, that is the particular day we commemorate the tragedy, because it marks the beginning of the persecution and ethnic cleansing by the Ottoman Turks. On April 24, 1915, Armenian political, intellectual, and religious were arrested, forcibly moved from their homeland and killed. The brutality continued against the Armenian people as families were uprooted from their homes and marched to concentration camps in the desert where they would eventually starve to death. By 1923, the religious and ideological persecution by the Ottoman Turks resulted in the murder of 1.5 million Armenian men, women, and children and the displacement of an additional 500,000 Armenians. In our lifetime, we have witnessed the brutality and savagery of genocide by despotic regimes seeking to deny people of human rights and religious freedoms. That is Stalin against the Russians, Hitler against the Jews, Mao Tse-tung against the Chinese, Pol Pot against the Cambodians, and Mobutu against the Rwandans. But genocide has devastating consequences on society as a whole because of the problems created by uprooting entire populations. The survivors become the ones who carry the memory of suffering and the realization that their loved ones are gone. They are the ones who no longer have a home and may feel ideological and spiritual abandonment. Part of the healing process for Armenian survivors and families of survivors involves the acknowledgment of the atrocity and the admission of wrongdoing by those doing the persecution. It is only through acknowledgment and forgiveness that it is possible to move past the history of the genocide and other sins. Unfortunately, those responsible for ordering the systematic removal of the Armenians were never brought to justice and the Armenian genocide became a dark moment in history, as we heard earlier, quoted by Hitler and others, who then proceeded to use it as an example to commit genocide on others, to be slowly forgotten by those in America and the international community. It is important that we remember this tragic event and show strong leadership by denouncing the persecution of people due to their differences in political and religious ideology. By establishing a continuing discourse, we are acknowledging the tragedies of the past and remembering those awful moments in history so they will not be repeated. Mr. Speaker, I want to thank all of my colleagues, those Members who have supported this resolution, as well as all the Armenian organizations in this country and throughout the world who have worked so hard to establish an understanding for their remembrance.

Mr. SOUDER

Mr. SOUDER. Yes.

Mr. SOUDER. Mr. Chairman, many of the Constitutional issues relevant to the Charitable Choice debate were discussed in an excellent article by Carl Esbeck in the Emory Law Review, which follows: A Constitutional Case for Governmental Cooperation With Faith-Based Social Service Providers d --------------------------------------------------------------------------- Footnotes appear at the end of article. --------------------------------------------------------------------------- It is often said that America's founding was an experiment in government. Certainly few features of the American constitutional settlement left more to future change--and were more of a break with existing European patterns--than the Establishment Clause set out in the First Amendment. The new Republic sought to rely on transcendent principles to justify its unpre-cedented advancements in human liberty.\1\ Concurrently, the Founders rejected any official or fixed formulation of these principles, for no public credo was to be established by law. So it is more than just a little ironic that the nation's most cherished human rights depend upon the continued private faith of innumerable Americans in creeds and confessions that themselves cannot be officially adopted by the Republic, lest the adoption run afoul of the prohibition on laws respecting an establishment of religion. Yet, coming full circle, it is this ``no-establishment principle'' that allows voluntary religion to flourish, which in turn nurtures belief in God-endowed rights.\2\ The resulting juggling act is what Dr. Os Guinness aptly describes as the still ``undecided experiment in freedom, a gravity-defying gamble that stands or falls on the dynamism and endurance of (the Republic's) unofficial faiths.'' \3\ This ongoing experiment in human liberty, because of its indeterminacy, has had the unforeseen effect of concentrating intense pressure on a single constitutional restraint on governmental power, namely the Establishment Clause. To the uninitiated, having the cause of this pressure pinpointed goes far toward explaining why the no-establishment principle has become one of the chief battle sites over who exercises cultural authority in this nation.\4\ Quite simply, the Establishment Clause has become where Americans litigate over the meaning of America.\5\ Thus, it is to the Establishment Clause that we rightly devote so much of our attention and energy. The United States Supreme Court's modern jurisprudence concerning church/state relations is commonly dated from its 1947 decision in Everson v. Board of Education,\6\ which embraced a separationist interpretation of the Establishment Clause. Since Everson, the Court begins with separatistic assumptions when addressing novel question that invokes the no-establishment principle. The separationism theory has become so dominant that today, fifty years after Everson, courts assume a need to justify holdings that reach results not easily fitting into Jefferson's influential metaphor (``a wall of separation'') as allowable departures from the rule first laid down in Everson. This article will refer to separationism as based on ``older assumptions.'' The Court's presuppositions concerning the nature and contemporary value of religion and the proper role of modern government underlie what will be referred to as a ``traditional analysis'' of the case law. Part I is a partial overview of the Supreme Court's cases since Everson, and has the goal of making the strongest arguments--within the framework of separationism--for the constitutionality of governmental welfare programs that permit participation by faith-based social service providers. Part II is about separationism's major competitor, a theory centered on the unleashing of personal liberty to the end that, with minimal governmental interference, individuals make their own religious choices. The theory has come to be called the neutrality principle.\7\ Neutrality theory surfaced most obviously in 1981 when the Supreme Court handed down its decision in the free speech and religion case of Widmar v. Vincent.\8\ Religious neutrality as a model for interpreting the Establishment Clause is based on what will be termed ``new assumptions.'' The aim of the new assumptions is to minimize the effects of governmental action on individual or group choices \9\ concerning religious belief and practice. When the dispute is over a welfare program in which faith-based social service providers desire to participate, the neutrality principle requires government to follow a rule of minimizing the impact of its actions on religion, to wit: all service providers may participate in a welfare program without regard to religion and free of eligibility criteria that require the abandonment of a provider's religious expression or character. Thus, Part II consists of a realignment of the Supreme Court's cases along a new axis, with the goal of making the strongest arguments--within the framework of these new assumptions--for the constitutionality of governmental programs of aid which permit full and equal participation by faith-based social service providers. Before turning to the case law, it should be stated candidly and up front that there is no truly neutral position concerning these matters, for all models of church/state relations embody substantive choices. The decisions the Supreme Court handed down in both Everson and Widmar are not otherwise. Separationism is a value-laden judgment that certain areas of the human condition best lie within the province of religion, while other areas of life are properly under the authority of civil government. Separationism, this most dominant of theories, is in no sense the inevitable product of objective reason unadulterated by an ideological commitment to some higher point of reference. Separationism cannot stand outside of the political and religious milieu from which it emerged and honestly claim to be neutral concerning the nature and contemporary value of religion or the purposes of modern government. The same must be said for its primary competitor, the neutrality theory.\10\ Indeed, to demand that any theory of church/state relations transcend its pedigree or its presuppositions and be substantively neutral is to ask the impossible.\11\ i. older assumptions: separationism and a traditional analysis of the case law The Supreme Court distinguishes between the direct \12\ and the indirect \13\ receipt of a government's welfare assistance by social service providers. ``Indirect'' welfare assistance means that a personal choice by the ultimate beneficiary--rather than by the government--determines which social service provider eventually receives the assistance. Indirect forms of assistance will be discussed first because the current state of the case law is more easily sorted out. The Court has consistently held that government may design a welfare program that places benefits in the hands of individuals, who in turn have freedom in the choice of service provider to which they take their benefits and ``spend'' them. It makes no difference whether the chosen provider is governmental or independent, secular or religious. Any aid to religion as a consequence of such a program only indirectly reaches--and thereby only indirectly advances--the religion of a faith-based provider. In situations of indirect assistance, the equal treatment of religion--no separationism--is the Court's operative rule for interpreting the Establishment Clause. As will be shown below, this rule of equality is instrumental to neutrality theory.\14\ The leading cases are Mueller v. Allen,\15\ Witters v. Washington Department of Services for the Blind,\16\ and most recently Zobrest v. Catalina Foothills School District.\17\ Even the more liberal Justices on the Court have acceded to the direct/indirect distinction.\18\ The rationale for this distinction is twofold. First, the constitutionally salient cause of any indirect aid to religion is entirely in the control of independent actors, not in the hands of the government. So long as individuals may freely choose or not choose religion, merely enabling private decisions logically cannot be a governmental establishment of religion. The government is essentially passive as to the relevant decision, and hence not the agent of any resulting religious use. Second, the indirect nature of the aid, channelled as it is through countless individual beneficiaries, reduces church/state interaction and any resulting regulatory oversight. This enhances the nonentanglement that is so desirable from the perspective of the Establishment Clause. There are a number of familiar programs that illustrate this rule: individual income tax deductions for contributions to charitable organizations, including those that are religious; \19\ and G.I. Bill \20\ and other federal aid to students attending the college or university of their choice, including those affiliated with a church; \21\ federal child care certificates for low-income parents of preschool-age children; \22\ and state-issued vouchers permitted under the Temporary Assistance for Needy Families program.\23\ Pursuant to this rule of law, vouchers given to welfare beneficiaries that are redeemable by any eligible provider, whether governmental or independent, secular or religious, would be constitutional.\24\ It bears emphasizing that the programs of aid upheld in Mueller, Witters, and Zobrest were adopted as a matter of legislative discretion or prudence. These cases do not hold that there is a constitutional right to equal treatment between governmental and independent sector providers. Government may decide that these indirect benefits are redeemable at its welfare agencies alone,\25\ thereby excluding all similarly situated independent sector providers. Should a state decide to provide assistance only through government-operated agencies, it can do so without violating the First Amendment. The caveat is that a state cannot adopt a program of aid that involves all providers of welfare services, governmental and independent sectors, but specifically disqualified participation by religious providers. The Free Exercise Clause prohibits any such intentional discrimination against religion.\26\ Unlike indirect forms of assistance, when it comes to direct assistance--that is, a government's general program of assistance flows directly to all organizations, including faith-based providers of services--then separationism is the Court's beginning frame of reference. Separationism makes three assumptions. First, it assumes that a sacred/secular dichotomy accurately describes the world of religion and the work of faith-based providers called to minister among the poor and needy. That is to say, the activities of faith-based providers can be separated into the temporal and the spiritual. This assumption, of course, is vigorously challenged by neutrality theorists.\27\ Second, separatists assume that religion is private and that it should not involve itself with public matters, with ``public'' often equated to ``political'' or ``governmental'' affairs. The neutrality principle rejects this private/public dichotomy as well, insisting that personal faith has public consequences and that the practice of religious faith can lead to cooperation with the government in achieving laudable public purposes.\28\ Third, separatists assume that a government's welfare assistance equates to aid for the service provider. Neutrality theories contest this characterization as well, describing the situation as one of cooperation between government and independent sector providers, with the joint aim being society's betterment through the delivery of aid to the ultimate beneficiaries.\29\ As a general proposition, the Supreme Court has said that direct forms of reimbursement can be provided for the ``secular'' services offered by a religious organization but not for those services comprising the group's ``religious'' practices. Thus, if an organization's secular and religious functions are reliably separable, direct assistance can be provided for the secular function alone. But if they are not separable, then the Court disallows the assistance altogether, with the explanation that the Establishment Clause will not allow the risk \30\ of governmental aid furthering the transmission of religious beliefs or practices. The juridical category the Court utilizes to determine whether a general program of direct assistance risks advancing religion is whether the provider is ``pervasively sectarian.'' \31\ Should the provider fit the profile of a pervasively sectarian organization, then separationist theory prohibits any direct aid to the provider. The one small exception is aid that, due to its form or nature, cannot be converted to a religious use. For example, the Court has allowed independent religious schools to receive government- provided secular textbooks and bus transportation between a student's home and school.\32\ All the Supreme Court's cases striking down direct programs of aid have involved primary and secondary faith-based schools.\33\ Contrariwise, in each of the three instances that have come before the Court involving direct aid to colleges and universities, including those which are faith- related, the Court has upheld the financial aid.\34\ The Court received considerable criticism--even ridicule--for the close distinctions it has made in religious school cases between the types of permissible and impermissible aid. However, for present purposes these distinctions are best seen as fact-finding quibbles over whether the Court rightly determined if the nature of a particular direct benefit can be converted to a religious and, therefore, forbidden use. On the two occasions the Court has considered the constitutionality of social service direct aid programs, it has sustained both programs. In a turn of the century case, Bradfield v. Roberts,\35\ the Court upheld a capital improvement grant for a church-affiliated hospital.\36\ At present, however, Bowen v. Kendrick \37\ is the modern and hence more pertinent case. By the narrow margin of five to four, the Court in Kendrick upheld ``on its face'' federal grants for teenage sexuality counseling, including counseling offered by faith-related centers. However, the Court remanded for a case-by-case or ``as applied'' review in order that teenage counseling centers found to be pervasively sectarian would have their grants discontinued.\38\ Under the Adolescent Family Life Act (AFLA),\39\ the Secretary of Health and Human Services authorizes direct cash grants to both governmental and independent sector nonprofit organizations doing research or providing services in the areas of teenage pregnancy and counseling for adolescents concerning premarital sexual relations. Accordingly, the societal problems addressed by AFLA are a blend of health, economic, and moral issues surrounding teenage sexuality and out-of-wedlock pregnancy. The statute defines an eligible grant recipient as a ``public or non-profit private organization or agency,'' apparently permitting otherwise qualified religious organizations to receive the grants on the same terms as nonreligious agencies.\40\ Moreover, language in the Act expressly invites participation by religious organizations and requires certain secular grantees to take into account involvement by religious organizations, along with family and community volunteer groups, in addressing the problem of adolescent sexuality.\41\ These provisions were written into the law to ensure that religious groups would be treated in a nondiscriminatory manner when compared with other similarly situated eligible grant recipients. No statutory language specifically barred the use of grant monies for worship, prayer, or other intrinsically religious activities. Finally, other than routine fiscal accountability to ensure that federal funds were not misappropriated, no monitoring or other oversight was made part of the resulting relationship between the Department of Health and Human Services and the participating religious organizations.\42\ After describing the broad outlines of AFLA, the majority spoke in sweeping terms of the Establishment Clause and governmental aid as permitting an equality-based rule. It said that ``religious institutions need not be quarantined from public benefits that are neutrally available to all,'' \43\ and that ``this Court has never held that religious institutions are disabled by the First Amendment from participating in publicly sponsored social welfare programs.'' \44\ The Court then went on to utilize the three- prong Lemon test for its analysis.\45\ Concerning Lemon's first prong, requiring that legislation have a secular purpose, the contending parties in Kendrick agreed ``that, on the whole, religious concerns were not the sole motivation behind the Act.'' \46\ As usual, the Court's application of the purpose test was highly deferential to the legislature. Lemon's second prong requires that the principal or primary effect of a law not advance religion. There was nothing ``inherently religious'' or ``specifically religious,'' pointed out the Court, about the activities or social services provided by the grantees to adolescents with premarital sexuality questions and problems.\47\ Moreover, simply because AFLA expressly required religious organizations to be considered among the available grantees and demanded that the role of religion be taken into account by secular grantees, that did not have the effect of endorsing a religious view of how to solve the problem.\48\ As to grantee eligibility, the Court interpreted AFLA as ``religion-blind'' when Congress required that all organizations, secular and religious, be considered on an equal footing. Further, the legislation did not violate the Establishment Clause merely because religious beliefs and the moral values urged by AFLA overlap.\49\ Critical to the result was that the majority refused to hold that faith-based teenage counseling centers were necessarily pervasively sectarian.\50\ Although the form of the assistance was a direct cash grant, the First Amendment was not offended as long as the grantee was not pervasively sectarian.\51\ The fact that the ultimate beneficiaries were impressionable adolescents did not, without more, present an unacceptable risk that the no-establishment principle was violated.\52\ Although AFLA did not expressly bar the use of federal funds for worship, prayer, or other inherently religious activities, the Court said no explicit bar was required. The Court added, however, that ``(c)learly, if there were such a provision in this statute, it would be easier to conclude that the statute on its face'' was constitutional.\53\ Under the third prong of Lemon, the Court considers whether the statute in question fosters an excessive administrative entanglement between religious officials and the offices of government. Monitoring of AFLA grantees by the Department of Health and Human Services is necessary only to ensure that federal money is not misappropriated. There is no requirement that faith-based grantees follow any federal guidelines concerning the content of the advice given to teenagers or otherwise modify their programs. There are no nondiscrimination requirements as to the beneficiaries served. Because religious grantees are not necessarily pervasively sectarian, the majority concluded that this limited oversight by the federal agency could not be deemed excessively entangling.\54\ Dividing the analysis between ``facial'' and ``as applied'' components places a considerable burden on separationists, like the legal activists behind the Kendrick litigation, who rove the country filing suits claiming Establishment Clause transgressions. The aim of these activists is to halt the government aid, not on a piecemeal or case-by-case basis, but by enjoining the entire Act insofar as it allows any participation by faith-based providers. This was possible when the Court was willing to overturn legislation on the mere ``risk'' that the second of third prongs of Lemon were violated.\55\ After Kendrick, a violation of the Establishment Clause must be proved in each case by palpable evidence that confessional religion is being advanced. The only exception occurs when the entire class of religious service providers is pervasively sectarian. Because not all faith-based social service providers are pervasively sectarian, a facial attack will fail. In a short concurring opinion, Justice O'Connor drew a helpful distinction. She noted that the object of congressional funding under AFLA, namely the moral issue of teenage sexuality, was ``inevitably more difficult than in other projects, such as ministering to the poor and the sick.'' \56\ Far easier cases, she opined, would be welfare programs funding faith-based soup kitchens or hospitals.\57\ Accordingly, where the object of the governmental aid is clearly addressed to temporal needs (e.g., food, clothing, shelter, health), in Justice O'Connor's view, a social service program that includes religious providers is facially constitutional.\58\ For the Court to require officials to distinguish between ``pervasively'' and ``non-pervasively'' sectarian organizations creates a fundamental inconsistency within its own doctrine. The Court had earlier held in Larson v. Valente \59\ that the Establishment Clause requires that government not intentionally discriminate among types of religions,\60\ nor should government utilize classifications based on denominational or sectarian affiliation.\61\ Moreover, in order to distinguish between ``pervasively'' and ``non- pervasively sectarian'' organizations, as Kendrick requires, courts will become deeply entangled in the religious character of these faith-based providers of social services.\62\ The Supreme Court, however, has said that whenever possible officials should avoid making detailed inquiries into religious practices, or probing into the significance of religious words and events.\63\ Justice Kennedy, sensing analytical difficulty with Establishment Clause doctrine whose application requires the Court to discriminate among religious groups, wrote a brief concurring opinion.\64\ Stating that he doubted whether ``the term `pervasively sectarian' is a well-founded juridical category,'' \65\ Justice Kennedy went on to adopt a neutrality-based rule. A social assistance program would be facially constitutional, Kennedy said, as long as its purpose was neutral as to religion and a diverse array of organizations were eligible to participate.\66\ Upon remand of the case, for Justice Kennedy the ``question in an as- applied challenge is not whether the entity is of a religious character, but how it spends its grant.'' \67\ As long as the grant is actually used for the designated public purpose-- rather than to advance inherently religious beliefs or practices--there is no violation of the Establishment Clause.\68\ This proposal has the virtue of not violating the rule set down in Larson. In laying down its rules concerning programs of direct assistance, the Supreme Court has adopted a funds-tracing analysis rather than a freed-funds analysis. That is, the Court interprets the Establishment Clause as forbidding the direct flow of taxpayer funds, as such, to pay for inherently religious activities. The Court does not concern itself when governmental funding of a faith-based provider's secular activities thereby frees private dollars to spend on religious activities. In a pervasively sectarian organization, however, in which the mixing of religious and secular activities is complete, the tracing of taxpayer funds will always determine that religious activities are advanced in tandem with the secular. Hence, in a pervasively sectarian organization even a funds-tracing analysis causes the Court to hold that no taxpayer funds can go directly to such organizations. The harm that separationists fear is not that privately raised dollars are freed as a consequence of the government's program so that they may be reallocated to a religious use. Rather, the feared harm is that governmental monies (collected as taxes, user fees, fines, sale of government property, etc.),\69\ may be used to pay for such inherently religious activities as worship, prayer, proselytizing, doctrinal teaching, and devotional scriptural reading. Indeed, separationists on the Court have been most insistent that the Establishment Clause ``absolutely prohibit(s) government-financed or government-sponsored indoctrination into the beliefs of a particular religious faith.'' \70\ Although it will scandalize separationists, the rest of us are led to probe below the bluff and bluster and ask the following: ``Is the harm resulting from government-collected monies going to religion so self-evident and severe?'' As citizens we are taxed to support all manner of policies and programs with which we disagree. Tax dollars pay for weapons of mass destruction that some believe are evil. Taxes pay for abortions and the execution of capital offenders, that some believe are acts of murder. Taxes pay the salaries of public officials whose policies we despise and oppose at every opportunity. Why is religion different? If the answer is that we are protecting a religiously informed conscientious right not to have one's taxes go toward the support of religion, the Supreme court has already rejected such a claim.\71\ It makes no difference to the Court that a taxpayer avers that he or she is ``coerced'' or otherwise ``offended'' when general tax revenues are used in a program that involves faith-based social service providers.\72\ Accordingly, with reference to the Court's interpretation of the Establishment Clause, it must again be asked, ``Is the harm that separationists would have us avoid at all cost so self-evident and severe? Although a thorough treatment of this question is beyond the scope of this Article, the answer separationists give is that there are two such harms which the Establishment Clause is designed to safeguard against, and history demonstrates that they can be quite severe: first, divisiveness within the body politic along sectarian lines; \73\ and, second, the damage to religion itself by the undermining of religious voluntarism and the weakening of church autonomy.\74\ Separationism has yet to give a convincing argument that these two harms will befall the nation as a result of the equal involvement of faith-based providers in social service programs. The harm of sectarian divisiveness within the body politic is not altogether different in kind or more threatening than tax funding for other ideologies and programs that citizens find disagreeable.\75\ And the harm to religion itself when too closely allied with government, while real and threatening, can be adequately protected by writing into the welfare legislation safeguards for protecting the religious character and expression of faith- based providers.\76\ ii. new assumptions: a paradigm shift to governmental neutrality Neutrality theory approaches the debate over the Establishment Clause from an altogether different point of entry. According to this theory, when government provides benefits to enable activities that serve the public good, such as education, health care, or social services, there should be neither discrimination in eligibility based on religion, nor exclusionary criteria requiring these charities to engage in self-censorship or otherwise water down their religious identity as a condition for program participation.\77\ The neutrality model allows individuals and religious groups to participate fully and equally with their fellow citizens in America's public life, without being forced either to shed or disguise their religious convictions or character. The theory is not a call for preferential treatment for religion in the administration of publicly funded programs.\78\ Rather, when it comes to participation in programs of aid, neutrality merely lays claim to the same access to benefits, without regard to religion, enjoyed by others.\79\ Finally, as noted above,\80\ the neutrality principle rejects the three assumptions made by separationist theory: that the activities of faith-based charities are severable into ``sacred'' and ``secular'' aspects, that religion is ``private'' whereas government monopolizes ``public'' matters, and that governmental assistance paid to service providers is aid to the providers as well as aid to the ultimate beneficiaries. Should separationism eventually be dislodged from its place as the controlling paradigm, it will be said that this change began in 1981 with the Supreme Court's decision in Widmar v. Vincent.\81\ In Widmar, a state university permitted student organizations to hold their meetings in campus buildings when the facilities were not being used for other purposes. However, student religious organizations were specifically denied such access. The university maintained that the denial was required because it could not support religion by providing meeting space for worship, prayer, and Bible study, consistent with a no-aid interpretation of the Establishment Clause. A group of students brought suit, first pointing out that the university had voluntarily created a limited public forum generally open to student expression. Having dedicated the forum, the students argued that expression of religious content could not be singled out for discrimination. A near- unanimous Supreme Court agreed. Most significantly, the Court held that the Establishment Clause did not override the Free Speech Clause as long as the creation of the forum had a secular purpose. Religious groups were just one of many student organizations permitted into the forum. As long as the circumstances were such that the university did not appear to be placing its power or prestige behind the religious message, the Establishment Clause was not a problem.\82\ The Widmar approach was soon dubbed ``equal access,'' and in 1984 Congress extended the same equality-based right to students enrolled in governmental secondary schools.\83\ Following recent free speech victories in Lamb's Chapel v. Center Moriches Union Free School District,\84\ Capitol Square Review and Advisory Board v. Pinette,\85\ and Rosenbergr v. Rector and Visitors of the University of Virginia,\86\ equal treatment has indeed become the normative rule of law concerning private speech of religious content or viewpoint.\87\ As discussed below, this equality-based rule is instrumental to neutrality theory.\88\ Notwithstanding this unbroken line of victories for the equal treatment of religion, it must be emphasized that in each case from Widmar to Rosenberger, it was the Free Speech Clause that required nondiscrimination, thereby supplying the victory. It remains to be explored below whether the neutrality principle can make the transition from an equality right in free speech to a right of equal participation in direct financial aid programs.\89\ Before continuing with the argument for neutrality theory based on the most recent Supreme Court cases, a digression is necessary to address the rationale for grounding the major competitor to separationism in the juridical concept of governmental neutrality rather than equality. As it turns out, a rule of equality works quite well when the church/ state dispute is over access to benefits.\90\ However, when the Establishment Clause challenge is to legislation that exempts religious organizations from regulatory burdens,\91\ the normative rule of law continues to follow a separationist model. Accordingly, when the issue is relief from government- imposed burdens, religious groups want to be viewed not as equal to others, but as separate and unique. As a juridical concept, neutrality integrates into a single coherent theory both (1) allowing religious providers equal access to benefits, and (2) allowing them separate relief from regulatory burdens. The rationale entails distinguishing between burdens and benefits. The Supreme Court has repeatedly held that the Establishment Clause is not violated when government refrains from imposing a burden on religion, even though that same burden is imposed on the nonreligious who are otherwise similarly situated. Corporation of Presiding Bishop v. Amos \92\ is the leading case. Amos upheld an exemption for religious organizations in federal civil rights legislation. The exemption permitted religious organizations to discriminate on a religious basis in matters concerning employment. Finding that the exemption did not violate the Establishment Clause, the Court explained that ``it is a permissible legislative purpose to alleviate significant governmental interference with the ability of religious organizations to define and carry out their missions.'' \93\ When the Court permits a legislature to exempt religion from regulatory burdens, it enables private religious choice. The Court's rationale is twofold. First, to establish a religion connotes that a government must take some affirmative step to achieve the prohibited result. Conversely, for government to passively ``leave religion where it found it'' logically cannot be an act establishing a religion.\94\ Referencing the First Amendment's text, the words ``shall make no law'' \95\ imply the performance of some affirmative act by government, not maintenance of the status quo. Stating the practical sense of the matter, Professor Laycock observed that ``(t)he state does not support or establish religion by leaving it alone.'' \96\ Second, unlike benefit programs, religious exemptions reduce civil/religious tensions and minimize church/state interactions, both matters that enhance the nonentanglement so desired by the Establishment Clause.\97\ Should the Court in the future permit a legislature to design welfare programs that confer direct assistance without regard to religion, it would be following a rule of equal treatment as to religion. However, exemptions from burdens and equal treatment as to benefits have a common thread that ties the two together. In following an equality-based rule as to benefits, equality is not an end in itself but a means to a higher goal. That goal is the minimization of the government's influence over personal choices concerning religious beliefs and practices. The goal is realized when government is neutral as to the religious choices of its citizens. Thus, whether pondering the constitutionality of exemptions from regulatory burdens or of equal treatment as to benefit programs, in both situations the integrating principle is neutralizing the impact of governmental action on personal religious choices.\98\ From that common axis, it makes sense to agree with the Court's holding, in cases such as Amos, that religious exemptions from legislative burdens are consistent with the Establishment Clause, and, on the other hand, to insist that the Establishment Clause permits the equal treatment of religion when it comes to financial benefits.\99\ It would be rhetorical, but still a fair comment, to say that in neutrality theory religion gets the best of both worlds: religion is free of burdens borne by others but shares equally in the benefits.\100\ However, this observation is not an argument against the neutrality principle but a commendation of it. No one need apologize for a model of church/state relations that maximizes religious liberty (subject, of course, to the reasonable demands of organized society) and limits the power of the modern regulatory state. This combination of liberty and limits is what the First Amendment is about. It was the First Amendment, after all, that expressly singled out religion as an attribute of human nature that called for special treatment. Previously mentioned were two cases handed down by the Court in late June of 1995: Capitol Square Review and Advisory Board v. Pinette,\101\ and Rosenberger v. Rector and Visitors of the University of Virginia.\102\ They represent the Court's most recent pronouncements on the Establishment Clause. Notably, the two newest appointees to the Court, Justices Ginsburg and Breyer, were members of the Court by then and heard both cases. The prima facie claim in both of these cases was that private religious speech was denied equal access to a public forum, in violation of the Free Speech Clause. The Court agreed. Further, in both cases the government sought to justify its discriminatory treatment of religious speech as being compelled by the Establishment Clause. A majority of the Justices rejected this defense. Hence, the result in both cases is more consistent with a theory of neutrality than of separationism. In Pinette, the Ohio Ku Klux Klan sought a permit to place a display consisting of a Latin cross in Capitol Square, a public area surrounding the statehouse. The square was otherwise open for private displays sponsored by a variety of citizen groups. The State denied the permit, claiming that the cross would be viewed as an endorsement of religion in violation of church/state separation.\103\ By a vote of seven to two the Court sided with the Klan. All of the Justices in the majority believed that placement of the cross by a private group was not barred by the Establishment Clause. However, these seven Justices generated four opinions, none of which commanded a five-vote majority concerning the application of the Establishment Clause to these facts. Justice Scalia, joined by Chief Justice Rehnquist and Justices Kennedy and Thomas, believed that the exclusion of a private religious symbol from a public forum could never be justified by the Establishment Clause. Long-standing free speech doctrine required that there be no discrimination as to content, and religious speech was not to be singled out for special scrutiny. The mere fact that onlookers might view a religious display and mistake it for the message of the state was no reason to suppress private speech. Rather, the solution to the problem of the mistaken observer is not to suppress the speech, but to correct the erroneous conclusion concerning the source of the message. So long as the government treats all speakers equally and does nothing to intentionally foster the onlooker's mistake, the government has done all that the establishment Clause requires.\104\ Justice O'Connor wrote separately about the mistaken observer.\105\ Applying an endorsement test, Justice O'Connor said that in some instances the Establishment Clause imposed a duty on the state to take steps to disclaim sponsorship of a private religious message.\106\ In her view, a government's formal equality toward religion may not always be enough. In circumstances in which, for example, private religious messages ``so dominate a public forum that a formal policy of equal access is transformed into a demonstration of approval'' in the eyes of an objective observer, the Establishment Clause requires the state to take affirmative measures to see to it that religion is not advanced.\107\ Justice Souter, joined by Justices O'Connor and Breyer, write separately about the inadequacy of facial equality. Justice Souter agreed that equal treatment of religion should narrowly prevail on these facts. However, this was because his concern for the appearance of state endorsement of religion could be remedied by requiring the affixing of a sign to the cross disclaiming official sponsorship. Such a disclaimer, of course, would be required only when the content of the speech is religious. Hence, the appropriate response, in Justice Souter's opinion, is not a facially neutral policy. Rather, the law ought to respond to private religious speech as a ``handle with care'' item. In Justice Souter's view, an access rule that is nondiscriminatory in purpose is required of the state, but by itself is insufficient. ``Effects matter to the Establishment Clause.'' \108\ The tone and content of Justice Souter's opinion left little doubt that in his view church/state separation, rather than even-handed treatment, is the dominant concern of the First Amendment. Justices Stevens and Ginsburg dissented in separate opinions. Justice Stevens believed that the Establishment Clause created ``a strong presumption against the installation of unattended religious symbols on public property.'' \109\ Thus, in his view separationism subordinates the Free Speech Clause and its rule of equal treatment. Justice Ginsburg was even more extreme, articulating not a presumption but an absolute rule of religious expulsion. She was of the opinion that ``(i)f the aim of the Establishment Clause is genuinely to uncouple government from church,'' then ``a State may not permit, and a court may not order, a display of this character.'' \110\ As authority for this absolutist separationism, Justice Ginsburg cited a law review article. The article is openly hostile to the contributions of traditional religion and urges that it be driven out of the public square.\111\ It is deeply disturbing that Justice Ginsburg, in her first opinion concerning religion as a Supreme Court Justice, would cite with approval this article with its brutish regard for religion and religious expression. In Rosenberger,\112\ decided the same day as Pinette, a university-recognized student organization published a newspaper known as Wide Awake. The newspaper ran a number of stories on contemporary matters of interest to students such as racism, homosexuality, eating disorders, and music reviews, all from an unabashedly Christian perspective.\113\ The university provided student newspapers work space and paid the expenses of printing these publications. The printing costs were paid from a fund generated by a student activity fee.\114\ The university refused to reimburse the cost of printing Wide Awake. The refusal was pursuant to a policy disqualifying printing costs for groups promoting ``a particular belief in or about a deity or ultimate reality.'' \115\ The student sued, claiming this was yet another instance of discrimination against private religious speech in violation of the Free Speech Clause. The university sought to justify its discriminatory treatment as required by a no- aid interpretation of the Establishment Clause.\116\ By a vote of five to four, the Court ruled in favor of the students and directed the university to treat Wide Awake the same as other student publications, without regard to the newspaper's religious perspective. Justice Kennedy wrote the majority opinion, and was joined by Chief Justice Rehnquist and Justices O'Connor, Scalia, and Thomas. Justice Kennedy determined that the university had created a limited public forum for student expression on a wide array of topics.\117\ Further, the denial of student activity funds to pay for the cost of printing Wide Awake was discrimination on the basis of the newspaper's Christian viewpoint concerning topics otherwise permitted in the forum.\118\ The university's policy denied funding not because Wide Awake was a religious organization, but because of its religious perspective.\119\ Justice Kennedy also rejected the argument that providing student groups with a scarce resource such as money differed from providing abundant resources such as classroom meeting space. Whether abundant or in limited supply, the university could not dispense its resources on a basis that was viewpoint- discriminatory.\120\ Justice Kennedy went on to reject the university's argument that providing direct funding for a newspaper with a religious perspective was prohibited by the Establishment Clause. In so doing, Justice Kennedy stated a rule of law consistent with neutrality theory, although he added that compliance with a neutrality rule was a significant factor-- but not itself sufficient--in finding that the Establishment Clause was not violated: A central lesson of our decisions is that a significant factor in upholding governmental programs in the face of Establishment Clause attack is their neutrality towards religion. . . . (I)n enforcing the prohibition against laws respecting establishment of religion, we must be sure that we do not inadvertently prohibit the government from extending its general state law benefits to all its citizens without regard to their religious belief. . . . We have held that the guarantee of neutrality is respected, not offended, when the government, following neutral criteria and evenhanded policies, extends benefits to recipients whose ideologies and viewpoints, including religious ones, are broad and diverse.\121\ Continuing, Justice Kennedy assessed both the purpose and ``practical details'' of the university's program. The university's purpose was clearly not the advancement of religion. The student activity fee was to promote a wide variety of speech of interest to students. Hence, the fee was unlike an earmarked tax for the support of religion.\122\ As to the ``practical details'' that augured in favor of constitutionality, Justice Kennedy noted that state funds did not flow directly into the coffers of Wide Awake; rather, the newspaper's outside printer was paid by the university upon submission of an invoice.\123\ Further, Justice Kennedy noted that Wide Awake was a student publication, ``not a religious institution, at least in the usual sense of that term as used in our case law, and it is not a religious organization as used in the University's own regulations.'' \124\ Although she joined the majority opinion, Justice O'Connor had greater difficulty concluding that the Establishment Clause was not transgressed on these facts. As between separatistic and neutrality models, she declared that Rosenberger did not elevate neutrality as the new paradigm: The Court's decision today therefore neither trumpets the supremacy of the neutrality principle nor signals the demise of the funding prohibition in Establishment Clause jurisprudence.\125\ Accordingly, separationism appears to be Justice O'Connor's starting point in cases involving direct funding of religious organizations. However, she found several mitigating details which on balance satisfied her that providing assistance in this case did not carry the danger of governmental funds' endorsing a religious message. First, university policies made it clear that the ideas expressed by student organizations, including religious groups, were not those of the university. Second, the funds were disbursed in a manner that ensured monies would be used only for the university's purpose of maintaining a robust marketplace of ideas. Finally, Justice O'Connor noted the possibility that students who objected to their fees going toward ideas they opposed might not be compelled to pay the entire fee.\126\ In addition to joining the majority opinion, Justice Thomas wrote separately to criticize the historical account in Justice Souter's dissent. Justice Thomas agreed with Justice Souter that history indicated that the Founders intended the Establishment Clause to prevent earmarking a tax for the support of religion.\127\ However, the equal participation of religious and nonreligious groups in a direct-aid program funded out of general tax revenues was never an issue faced by the founding generation.\128\ Hence, in Justice Thomas's view, it is not prohibited by the Establishment Clause. Justice Souter dissented, joined by Justices Stevens, Ginsburg, and Breyer. Concerning a direct-aid program funded by public monies, Justice Souter stated that any such program was unconstitutional if it used public monies to support religion.\129\ Hence, the four dissenting Justices followed a separatistic model. Justice Souter severely criticized Justice Kennedy's opinion insofar as it made distinctions based on certain factual peculiarities of the case: The funds going directly to the printer, not to the publication; the funds originating from student fees, not taxes; and the newspaper not being a religious organization, although it espoused overtly religious beliefs.\130\ The ``practical details'' section of Justice Kennedy's opinion does appear to focus on minutiae. These are indeed chimerical distinctions on which the Establishment Clause is seemingly made to turn. In fairness to Justice Kennedy, however, he may have been forced into these rationalizations in order to keep Justice O'Connor with the majority. She supplied the crucial fifth vote. But if keeping Justice O'Connor from separately concurring explains Justice Kennedy's attention to ``practical details,'' it came at a high price: Officials and judges who do not like the result in Rosenberger have plenty of fine distinctions to manipulate so as to confine the case's holding narrowly to its facts. In summary, concerning the constitutionality of general programs of direct aid, from Pinette and Rosenberger we learn that presently four Justices are prepared to allow a rule of neutrality, four Justices remain entrenched in separationism as their theory, and Justice O'Connor is the swing vote. Although it is clear that facial neutrality alone is insufficient, Justice O'Connor was unwilling to commit to any broader statement of general legal principles. It must be conceded that her instinct in these cases is not to begin with neutrality theory, but to follow a weak version of separationism.\131\ She starts with a presumption of no aid, but then advises weighing the totality of the circumstances. If the legislation is facially neutral as to religion, if the program is administered so that there is no appearance of official endorsement of religion, and if there are sufficient safeguards against the welfare program's functioning as a subterfuge for channeling tax monies to support religion, then she will allow a rule of neutrality.\132\ In Rosenberger, as in Widmar, Lamb's Chapel, and Pinette, it was the Free Speech Clause that compelled the equal treatment of religion.\133\ In the absence of the free speech claim, there was no indication the Court would have required--as a matter of constitutional right--that religion be treated equally in welfare programs. It is uncertain whether the Court will do so.\134\ All that can be said with assurance is that should a legislature choose to treat religion in a nondiscriminatory manner when designing a program of aid, then a slim majority of the present Court will uphold the aid. Accordingly, religious social service providers have no certainty of equal treatment, but it is permitted.\135\ As we look at the progression from Widmar to Rosenberger in terms of the Court's attitude toward enabling personal religious choice, there is a logical continuum. The Court has moved toward neutralizing government's impact on religious belief and practice. In Widmar, the Establishment Clause was not violated when the government provided a direct benefit in the form of reserved meeting space (classrooms, heat, and light) because of the larger public purpose at issue-- enriching the marketplace of ideas. In Rosenberger, the Establishment Clause was not violated when the government provided a direct benefit in the form of funding (paid printing costs) for the same reason as in Widmar--the larger public purpose of enriching the marketplace of ideas. Both the classroom space and payment of printing costs were valuable benefits to which a sum certain could be assigned. Free access to other forms of valuable direct benefits easily come to mind: Bulletin boards, photocopy machines, computers for word processing and e-mail, facsimile machines, organizational mailboxes, organizational office space, and even something as common as use of a telephone. All of these direct benefits when provided to a wide variety of student organizations, including organizations that are either religious or have religious viewpoints, would be permitted by the Widmar/Rosenberger interpretation of the Establishment Clause. Indeed, there is no logical stopping place as the circumstance evolves from funding private expression without regard to religion to funding a social program without regard to religion. The essential requisite, as far as the Establishment Clause is concerned, is that in the case of expression, the creation of the public forum have a public purposes. In the case of a social service program, its enactment must have a public purpose as well. The general principle of law that emerges is that the Establishment Clause is not violated when, for a public purpose, a program of direct aid is made available to an array of providers selected without regard to religion. In recently enacting the Church Arson Prevention Act,\136\ Congress made use of this principle. Section 4(a) of the Act enables nonprofit organizations exempt under S 501(c)(3) of the Internal Revenue Code, which are victims of arson or terrorism as a result of racial or religious animus, to obtain federally guaranteed loans through private lending institutions.\137\ This of course means churches can obtain the necessary credit to repair or rebuild their houses of worship at reduced rates. This Act, quite sensibly, treats churches the same as all similarly situated exempt nonprofit organizations. The public purpose is to assist the victims of crime. The federal guarantee represents a form of direct aid to religion, but because the aid is neutrally available to all 501(c)(3) organizations, it does not violate the Establishment Clause. In the context of welfare legislation, the public purpose is for government and the independent sector to engage in a cooperative program that addresses the temporal needs of the ultimate beneficiaries,\138\ and to do so in a manner that enhances the quality or quantity of the services to those beneficiaries. If some of the providers happen (indeed, are known) to be religious, and in the course of administering their programs they integrate therein religious beliefs and practices, that is of no concern to the government. As long as the beneficiaries have a choice as to where they can obtain services, thereby preventing any religious coercion of beneficiaries, and as long as the public purpose of the program is met,\139\ the government's interest is at an end.\140\ For a welfare program to have a public purpose, more is required than that the program merely be facially neutral as to religion.\141\ The legislation must have as its genuine object the pursuit of the good of civil society. Permissible public purposes encompass health (including freedom from addictions), safety, morals, or meeting temporal needs, such as shelter, food, clothing, and employment. Unlike separationism, in neutrality theory it makes no difference whether a provider is ``pervasively sectarian'' or whether the nature of the direct aid is such that it can be diverted to a religious use.\142\ Most importantly, the courts no longer need to ensure that governmental funds are used exclusively for ``secular, neutral, and nonideological purposes'' \143\ as opposed to worship or religious instruction. Neutrality theory eliminates the need for the judiciary to engage in such alchemy. For faith-based providers to retain their religious character, programs of aid must be written to specially exempt them from regulatory burdens that would frustrate or compromise their religious character. Not only is this essential to attracting their participation, but it is in the government's interest for these providers to retain the spiritual character so central to their success in rehabilitating the poor and needy.\144\ The line of cases typified by the holding in Amos gives assurance that the adoption of such exemptions do not violate the Establishment Clause.\145\ In neutrality theory it might be asked, ``Just what is left of the Establishment Clause?'' The answer is, ``Quite a lot!'' In addition to the several applications noted elsewhere in this Article,\146\ the Establishment Clause continues to prohibit the government from adopting or administering a welfare program out of a purpose that is inherently religious.\147\ For example, the no-establishment principle does not permit as the object of legislation the pursuit of worship, religious teaching, prayer, proselytizing, or devotional Bible reading.\148\ Characterizing the purpose of a program of aid as ``nonsectarian'' or ``secular'' should be avoided, for that just clouds the issue. Mere overlap between a statutory purpose and religious belief or practice does not, without more, make the legislation unconstitutional.\149\ Finally, although the Establishment Clause does require a public purpose, the neutrality principle is not concerned with unintended effects among religions. Accordingly, the Establishment Clause is not offended should a general program of aid affect, for good or ill, some religious providers more than others,\150\ as long as any disparate effect is unintentional.\151\ State constitutions also address the matter of church/state relations, sometimes in terms that are more separatistic than the Supreme Court's interpretation of the Establishment Clause.\152\ A program of aid that successfully navigates the First Amendment can nonetheless go aground on claims based on state constitutional law. However, if the welfare program is federal or federal revenues are shared with the states, then these state constitutions can be preempted by Congress. Conclusion As one facet of the nation's overall effort to reform welfare, it is imperative to increase the involvement of the independent sector in the delivery of government-assisted social services. A significant part of the voluntary sector presently engaged in social work consists of faith-based nonprofit organizations. Indeed, these religious charities are some of the most efficient social service providers, as well as among the most successful, measured in terms of lives permanently changed for the better.\153\ Although some faith- based providers have been willing to participate in government-assisted programs, many are wary about involvement with the government because they rightly fear the debasing of their religious characters and expression.\154\ Consequently, what is needed is legislation that invites the equal participation of faith-based organizations as social service providers, while safeguarding their religious character, which is the very source of their genius and success. Achieving this goal will require change in how Americans conceive of the role of modern government, which fortunately is already underway. For starters, the activity of government must not be thought of as monopolizing the ``public.'' Rather, civil society is comprised of many intermediate institutions and communities that also serve public purposes, including the independent sector of nonprofit faith-based providers. Further, independent sector providers that opt to participate in a government welfare program are not in any primary sense to be regarded as ``beneficiaries'' of the government's assistance. Rather, it is those who are the ultimate object of the social service program--the hungry, the homeless, the alcoholic, the teenage mother--who are the beneficiaries of taxpayer funds. As they deliver services to those in need with such remarkable efficiency and effectiveness, faith-based providers, along with others in the voluntary sector, give far more in value, measured in societal betterment, than they could possibly receive as an incident of their expanded responsibilities. This is not a case of tax dollars funding religion. Rightly interpreted, the Establishment Clause does not require that faith-based providers censor their religious expression and secularize their identity as conditions of participation in a governmental program. So long as the welfare program has as its object the public purpose of society's betterment--that is, help for the poor and needy-- and so long as the program is equally open to all providers, religious and secular, then the First Amendment requirement that the law be neutral as to religion is fully satisfied. Neutrality theory has the additional virtue of eliminating existing ``conflict'' among the clauses of the First Amendment. By not discriminating between ``pervasively'' and ``non-pervasively sectarian'' organizations, the Court's interpretation of the Establishment Clause is brought into line with the rule of Larson v. Valente \155\ prohibiting intentional discrimination among religious groups, and avoids as well excessive inquiry into the character of religious organizations.\156\ By not discriminating in favor of secular organizations over religious organizations through the funding of only the former, the Court's interpretation of the Establishment Clause is brought into line with the rule of Church of the Lukumi Babalu Aye, Inc. v. City Hialeah \157\ prohibiting intentional discrimination against religion. And by not discriminating against private religious speech in either content or viewpoint, the Court's interpretation of the Establishment Clause is in line with longstanding free speech doctrine as adhered to in Rosenberger. The separationist view that when in ``conflict,'' the Establishment Clause subordinates the Free Exercise and Free Speech Clauses has heightened religious tensions over political matters. Contrariwise, the neutrality principle promises to reduce political factionalism along religious lines. As First Amendment law evolves away from separationism and in the direction of neutrality theory, it is inevitable that there will be setbacks. But the neutrality principle has about it the march of an idea, one that is compelling because it unleashes liberty, limits government, and reinvigorates citizen involvement at the neighborhood level. For the sake of America's poor and needy, we can only hope that the Supreme Court's full embrace of neutrality will come soon. d This Article was first presented at a workshop on the Constitutionality of Governmental Cooperation with Religious Social Ministries on August 2-3, 1996, at Washington, D.C., sponsored by the Religious Social-Sector Project of the Center for Public Justice. a Isabelle Wade & Paul C. Lyda Professor of Law, University of Missouri-Columbia. B.S., Iowa State University of Science & Technology, 1971; J.D., Cornell University, 1974. \1\ The Declaration of Independence, for example, refers to these transcending principles as ``self-evident truths,'' ``Creator-endowed inalienable rights,'' and ``the laws of nature and of nature's God.'' These higher law principles did not necessarily rest upon a common confession of revealed truth. For some among the Founders, the principles were derived from a faith in reason. But the reliance on transcendent principles, whether extrapolated from reason or revelation, did mean agreement at the level of the moral basis for political action. See, e.g., John G. West, Jr., The Politics of Revelation & Reason: Religion & Civic Life In The New Nation (1996): The Founders eliminated the problem of dual allegiance to God and government by removing God from the authority of the government. . . . This solution to the theological-political problem in theory, however, required a major corollary to work in practice: a belief that church and state would agree on the moral basis of political action. . . . Only if church and state can agree on the moral standard for political action can (subjugation of religion to state or vice versa) be avoided. In other words, reason (the operating principle of civil government) and revelation (the ultimate standard for religion) must concur on the moral law for the Founders' solution to work. The Founders, of course, agreed with this proposition. . . . This conceit that reason and revelation agreed on the moral law so permeated the Founding era that the modern reader may miss it because authors of the period more often assumed this proposition than demonstrated it. When citing authority for fundamental propositions, writers of the Founding era appealed to both reason and revelation as a matter of course. Id. at 74-75. \2\ See, for example, James Madison's letter wherein he observes how the Virginia churches had greatly expanded in number and reputation since disestablishment. Letter to Edward Livingston (July 10, 1822), in 3 Letters and Other Writings of James Madison, Fourth President of the United States 273, 276 (1865) (``(in) Virginia. . . . religion prevails with more zeal and a more exemplary priesthood than it ever did when established. . . . Religion flourishes in greater purity without, than with the aid of Government''). That keenest of observers, Alexis de Tocqueville, sketched this delicate balance in operation during his visits to the America of the 1830s: Religion, which never intervenes directly in the government of American society, should . . . be considered as the first of their political institutions. . . . I do not know if all Americans have faith in their religion--for who can read the secrets of the heart?--but I am sure that they think it necessary to the maintenance of republican institutions. That is not the view of one class or party among the citizens, but of the whole nation; it is found in all ranks. For the Americans the ideals of Christianity and liberty are so completely mingled that it is almost impossible to get them to conceive of the one without the other. . . . The religious atmosphere of the country was the first thing that struck me on arrival in the United States. The longer I stayed in the country, the more conscious I became of the important political consequences resulting from this novel situation. In France I had seen the spirits of religion and of freedom almost always marching in opposite directions. In America I found them intimately linked together in joint reign over the same land. My longing to understand the reason for this phenomenon increased daily. To find this out, I questioned the faithful of all communions. . . . I found that (American Catholic priests) all . . . thought that the main reason for the quiet sway of religion over their country was the complete separation of church and state. I have no hesitation in stating that throughout my stay in America I met nobody, lay or cleric, who did not agree about that. Alexis de Tocqueville, Democracy In America 269-72 (J.P. Mayer & Max Lerner, eds., Harper & Row 1966). \3\ Os Guinness, The American Hour: A Time of Reckoning and the Once and Future Role of Faith 18-19 (1993). \4\ See Stephen L. Carter, The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion (1993); James Davison Hunter, Culture Wars: The Struggle to Define America (1991). \5\ Some have puzzled as to why broad coalitions, like that behind the Religious Freedom Restoration Act of 1993, 42 U.S.C. Sec. Sec. 2000bb to 2000bb-4 (1994), can come together over the meaning of the Free Exercise Clause but not the Establishment Clause. The Free Exercise Clause is about protecting religiously informed conscience, especially freedom for religious minorities to continue practices that are out of step with the general culture. Most everyone who cares about religion agrees on the desirability of protecting these matters. This is not the case, however, with the Establishment Clause. Where the stakes are high, as in the culture wars, there can be little coalition building between social liberals and social conservatives or between theological liberals and theological conservatives. \6\ 330 U.S. 1 (1947). While narrowly upholding a state law permitting local authorities to reimburse parents for the cost of transporting children to school, including church- related institutions, the rhetoric and historical method adopted by the Court in Everson were separatistic. \7\ See e.g., Rosenberger v. Rector & Visitors of the Univ. of Va., 115 S. Ct. 2510, 2528 (1995) (O'Connor, J., concurring) (contrasting the ``neutrality principle'' with the ``funding prohibition'' view of the Establishment Clause); Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687, 704 (1994) (``(The (neutrality) principle is well grounded in our case law, as we have frequently relied explicitly on the general availability of any benefit provided religious groups or individuals in turning aside Establishment Clause challenges.'') Bowen v. Kendrick, 487 U.S. 589, 624 (1988) (Kennedy, J., concurring) (characterizing a social service program open to a diverse array of organizations neutral as to religious and nonreligious applicants). \8\ 454 U.S. 263 (1981). Widmar held that the Free Speech Clause, with its requirement that there be no content-based discrimination, is not overridden by the Establishment Clause. Id. at 271-75. Accordingly, a state university was prohibited from denying a student religious organization the same access to facilities provided to other student organizations, thereby permitting the students to meet, pray, sing, and worship on campus. \9\ Religious choices by an individual believer or by a religious group are not differentiated in this Article. Individual rights are akin to the group rights of a church or religious denomination as long as the organization can show injury-in-fact to the purposes or activities of the group itself, or when the organization has third-party standing to assert a rights claim on behalf of its members pursuant to the three-part test set out in Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 343 (1977). \10\ The term ``neutrality'' can mislead readers into believing that the theory claims to be substantively neutral. It is not. The theory is neutral only in the sense that government minimizes its role in influencing the religious choices of its citizens, thereby leaving persons free to make these choices for themselves, Government does so, for example, by structuring its social welfare programs to give citizens wide choices, with religious choices being among the available selections. To further confuse matters, courts and commentators sometimes use ``equal'' as a substitute for ``neutral,'' See, e.g., Stephen V. Monsma & J. Christopher Soper, eds., Equal Treatment of Religion in a Pluralist Society (forthcoming 1997). In this context, ``neutrality'' and ``equality'' are intended to convey the same meaning. Whether termed the ``neutrality principle'' or ``equal-treatment review,'' the theory stakes out substantiative positions as to the nature and contemporary value of religion and the purposes of modern government. The theory places a great deal of importance on the religious impulse in human nature. And the theory assigns to government a minimal role in directing religion, seeking to limit government to addressing the reasonable regulatory needs for the protection of organized society. \11\ One of the conceits of modernism is that humankind acting alone, through reason and scientific observation, can determine universal truths, the Jewish and Christian traditions will test any such ``universals'' against the special revelation of Scripture. Postmodernists, like observant Jews and traditional Christians, dismiss the professed objectivity or claimed neutrality of modernists as arrogant pretensions. Without embracing the rest of their philosophy, religionists can agree with postmodernists that human reason--and hence one of its products, the positive law--is contingent on time, place, perception, and culture. See generally Stanley J. Grenz, A Primer on Postmodernism (1966); Gene Edward Veith, Jr., Postmodern Times: A Christian Guide to Contemporary Thought and Culture (1994). Thus, when engaging the church/state debate, observant Jews and traditional Christians may be disarmingly candid and lose nothing in the bargain by conceding that there is no neutral theory concerning the proper interpretation of the Establishment Clause. Rather, the question for Jews and Christians is to determine which theory of church/state relations most nearly comports with the biblical image of life's purpose, as well as the proper role of the political community. \12\ Direct forms of assistance come not just as payments on specified-use grants or purchase-of-service contracts, but in a variety of other forms as well; high-risk loans, low- interest loans, and government-guaranteed loans; tax-exempt low-interest bonds for capital improvements; insurance at favorable premiums; in-kind donations of goods such as used furniture or surplus food; free use of government property, facilities, or equipment; free assistance by government personnel to perform certain tasks; free instruction, consultation, or training by government personnel; and reduced postal rates. Office of Management and Budget, Executive Office of the President, Catalog of Fed. Domestic Assistance xv-svi (29th ed. 1995). The catalog lists and defines 15 types of federal assistance. As classified by the General Services Administration, federal benefits and services are provided through seven categories of financial assistance (grants, insurance, donated property, etc.) and eight categories of nonfinancial assistance (training, counseling, supplying technical literature, investigation of complaints, etc.). Id. See also Douglas J. Besharov, Bottom- up Funding, in To Empower People: From State to Civil Society 124 (Michael Novak ed., 2d ed. 1996) (comparing the strengths and weaknesses that arise when funding comes directly and indirectly from government). \13\ Indirect forms of assistance include: individual income tax credits and deductions; student scholarships, fellowships, and guaranteed loans; and educational vouchers and federal child care certificates. Indirect assistance can be further divided. Vouchers and scholarships, for example, are types of indirect aid where the immediate source of the benefit is the government. On the other hand, indirect benefits such as tax credits and deductions are examples of so called ``bottom-up'' aid, in which the immediate source of aid is private. The government's role in connection with this second type of indirect assistance is to facilitate the flow of aid by rewarding the private source after the fact. The distinction between these two types of indirect assistance may enter into certain policy debates and decisions made by legislators. However, the Supreme Court has not made use of this distinction for purposes of interpreting the Establishment Clause. \14\ See infra notes 90-100 and accompanying text. \15\ 463 U.S. 388 (1983) (upholding a state income tax deduction conferred on school parents to assist in their children's tuition and other educational expenses). \16\ 474 U.S. 481 (1986) (upholding a state vocational grant program to finance a blind individual's training at a sectarian school to obtain a degree to enter a religious vocation). \17\ 509 U.S. 1 (1993) (providing an interpreter to a deaf student attending a parochial high school does not violate the Establishment Clause). Even Everson v. Board of Educ., 330 U.S. 1 (1947), which upheld a state law allowing local governments to provide reimbursement to parents for the expense of transporting their children by bus to school, including to parochial schools, can also be characterized as having subscribed to this direct/indirect distinction. \18\ See Rosenberger v. Rector & Visitors of the Univ. of Va., 115 S. Ct. 2510, 2541 (1995) (Souter, J., dissenting, writing for himself and Justices Stevens, Ginsburg, and Breyer) (acknowledging the rule applied in Mueller, Witters, and Zobrest. \19\ See 26 U.S.C. Sec. Sec. 170, 501(c)(3)(1994). \20\ 38 U.S.C. Sec. Sec. 3201-3243 (1994). \21\ See, e.g., Federal Pell Grants, 20 U.S.C. Sec. 1070a (1994); 34 C.F.R. Sec. 690.78. An eligible student for a Pell grant is defined in 20 U.S.C. Sec. 1091 (1994). Students may utilize their grant at an institution of higher education (Sec. 1088) or other eligible institution (Sec. 1094). Church-affilated colleges and universities are not excluded. \22\ The Child Care and Development Block Grant Act of 1990, 42 U.S.C. Sec. Sec. 9858-9858q (Supp. 1996). The Act allows parents receiving child care certificates from the government to obtain child care at a center operated by a church or other religious organization, including a pervasively sectarian center. Id. at Sec. Sec. 9858n(2), 9858k(a), 9859c(c)(2)(A)(i)(I). \23\ See Sec. 104(j) of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 42 U.S.C. Sec. 604a (1996 Supp.). Section 104 is known by the popular name of ``Charitable Choice.'' Charitable Choice permits states to involve faith-based providers in the delivery of welfare services funded by the federal government though block grants to the states. Where the form of the assistance is indirect, such as by means of certificates or vouchers, the faith-based providers are not restricted as to their religious activities. \24\ To be sure, care must be exercised in the design of the welfare program. If only voluntary sector providers are eligible and if most of these providers are faith-based, then the case law may support overturning the program as having a primary religious effect. See Committee for Pub. Educ. v. Nyquist, 413 U.S. 756 (1973) (striking down a state educational program that was designed to aid only nonpublic schools); Similar to Nyquist is Sloan v. Lemon, 413 U.S. 825, 833-35 (1973) (holding unconstitutional a state tuition reimbursement plan available only to parents of nonpublic school students). Because the plan in Nyquist excluded government schools, Nyquist is distinguishable from Mueller, Witters, and Zobrest. See Durham v. McLeod, 192 S.E.2d 202 (S.C. 1972), dismissed for want of a substantial federal question, 413 U.S. 902 (1973) (decided on the same day the Court decided Nyquist). In Durham, the state court had upheld a student loan program wherein students could attend the college of their choice, religious or nonreligious. The Supreme Court apparently approved. Likewise, the Court in Nyquist said that educational assistance provisions such as the G.I. Bill do not violate the Establishment Clause even when some GIs choose to attend church-affiliated colleges. 413 U.S. at 782 n.38 (leaving open the option of ``some form of public assistance (e.g., scholarships) made available generally without regard to the sectarian/nonsectarian, or public/ nonpublic nature of the institution benefited''). \25\ See Norwood v. Harrison, 413 U.S. 455, 462 (1973); Everson v. Board of Educ., 330 U.S. 1, 16 (1947) (dictum); Brusca v. State Bd. of Educ., 332 F. Supp. 275 (E.D. Mo. 1971), aff'd mem., 405 U.S. 1050 (1972). \26\ Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993); McDaniel v. Paty, 435 U.S. 618 (1978). Should such case ever arise, separationists will argue that there is a compelling interest in overriding the Free Exercise Clause, namely the ``no aid'' interpretation of the Establishment Clause. There are no Supreme Court cases on this precise point. However, the recent case of Rosenberger v. Rector & Visitors of the Univ. of Va., 115 S. Ct. 2510 (1995), did uphold direct aid to a publication with an overtly religious viewpoint. The Establishment Clause was found not to prohibit the direct funding. Hence, compliance with the Clause was not a compelling governmental interest. See infra notes 112-30 and accompanying text. A recent case in the Sixth Circuit, citing Church of the Lukumi, held that the U.S. Army violated the Free Exercise Clause when it excluded religious but not secular child care providers from operating on its bases and receiving various direct benefits. Hartman v. Stone, 68 F.3d 973 (6th Cir. 1995). The appeals court went on to hold that the governmental assistance did not advance or endorse religion in violation of the Establishment Clause. In all respects, Hartman appears to have correctly applied Supreme Court precedent. \27\ The Court has constructed a society in which faith- based providers deliver their welfare services within discrete and clearly defined boundaries easily segregated from the provider's religious beliefs and practices. For a thorough debunking of the Court's sacred/secular dichotomy, see Laura Underkuffler-Freund, The Separation of the Religious and the Secular: A Foundation challenge to First Amendment Theory, 36 Wm. & Mary L. Rev. 837 (1995). \28\ In neutrality theory, the activities of ``government'' do not monopolize the ``public.'' At present--as well as historically--faith-based charities comprise a large number of the available voluntary sector social service providers, and they operate many of the most efficient and successful programs. As long as the government's welfare program furthers the public purpose of society's betterment--that is, helping the poor and the needy--it is neutral as to religion if the program involves faith-based providers on an equal basis with all others. \29\ In neutrality theory, the independent sector providers of social services who opt to participate in a government's welfare program are not in any primary sense ``beneficiaries'' of the government's assistance. Because they deliver services to those in need, faith-based providers give far more in valve measured by societal betterment than they could possibly receive as an incident of their expanded responsibilities. \30\ The Court has not always required proof of actual advancement of religion. In certain instances, the mere presence of such a risk or hazard has been sufficient to strike down the aid program. See Grand Rapids Sch. Dist. v. Ball, 473 U.S. 373, 385, 387 (1985); Wolman v. Walter, 433 U.S. 229, 254 (1977); Meek v. Pittenger, 421 U.S. 349, 370, 372 (1975); Levitt v. Committee for Pub. Educ., 413 U.S. 474, 480 (1973); cf. Bowen v. Kendrick, 487 U.S. 589, 610-12 (1988). \31\ The meaning of the term ``pervasively sectarian'' can be gleaned from the cases. In Roemer v. Board of Public Works, 426 U.S. 736, 758 (1976) (plurality opinion), the Court turned back a challenge to a state program awarding noncategorical grants to colleges, including sectarian institutions that offered more than just seminarian degrees. In discussion focused on the fostering of religion, the Court said: (T)he primariy-effect question is the substantive one of what private educational activities, by whatever procedure, may be supported by state funds. Hunt (v. McNair, 413 U.S. 734 (1973)) requires (1) that no state aid at all go to institutions that are so ``pervasively sectarian'' that secular activities cannot be separated from sectarian ones, and (2) that if secular activities can be separated out, they alone may be funded. 426 U.S. at 755. The Roman Catholic colleagues in Roemer were held not be previously sectarian. The record supported findings that the institutions employed chaplains who held worship services on campus, taught mandatory religious classes, and started some classes with prayer. However, there was a high degree of autonomy from the Roman Catholic Church, the faculty was not hired on a religious basis and had complete academic freedom except in religion classes, and students were chosen without regard to their religion. A comparison of the colleges in Roemer with the elementary and secondary schools in Committee for Public Education v. Nyquist, 413 U.S. 756, 767-68 (1973), clarifies the term ``pervasively sectarian.'' The schools in Nyquist that were found to be pervasively sectarian placed religious restrictions on student admissions and faculty appointments, enforced obedience to religious dogma, required attendance at religious services, required religious or doctrinal study, were an integral part of the mission of the sponsoring church, had religious indoctrination as a primary purpose, and imposed religious restrictions on how and what the faculty could teach. Although the definition of a pervasively sectarian institution has been stated in the foregoing general terms, only church-affiliated primary and secondary schools have ever been found by the Supreme Court to fit the profile. Presumably a church, synagogue, or mosque would also be regarded as pervasively sectarian insofar as it performs sacerdotal functions. \32\ See, e.g., Committee for Pub. Educ. & Religious Liberty v. Regan, 444 U.S. 646 (1980) (subsidy for state- prepared testing and recordkeeping required by law); Wolman v. Walter, 433 U.S. 229 (1977) (upholding use of public personnel to provide guidance, remedial, and therapeutic speech and hearing services at a neutral site; upholding provision of diagnostic services in the nonpublic school; upholding provision of standardized tests and state scoring); Meek, 421 U.S. 349 (loan of secular textbooks); Board of Educ. v. Allen, 392 U.S. 236 (1968) (secular textbooks). \33\ See Aguilar v. Felton, 473 U.S. 402 (1985); Grand Rapids Sch. Dist., 473 U.S. 373; New York v. Cathedral Academy, 434 U.S. 125 (1977); Wolman, 433 U.S. 229; Meek, 421 U.S. 349; Nyquist, 413 U.S. 756; Levitt, 413 U.S. 472; Lemon v. Kurtzman, 403 U.S. 602 (1971). \34\ See Roemer, 426 U.S. 736; Hunt, 413 U.S. 734; Tilton v. Richardson, 403 U.S. 672 (1971). \35\ 175 U.S. 291 (1899). \36\ In Bradfield, a corporation located in the District of Columbia known as Providence Hospital was chartered in 1864 by act of Congress. The enabling act was facially neutral in that it made no mention of religion, nor was the hospital ostensibly controlled by or associated with a church. Nevertheless, all the directors of the hospital and their successors were ``members of a monastic order or sisterhood of the Roman Catholic Church,'' and title to the real estate on which the hospital buildings were constructed was ``vested in the Sisters of Charity of Emmitsburg, Maryland.'' Id. at 297. Federal taxpayers challenged as violative of the Establishment Clause an 1897 appropriation to build on the hospital grounds ``an isolating building or ward for the treatment of minor contagious diseases,'' that when completed was to be turned over to Providence Hospital. Id. at 293. This arrangement, alleged plaintiffs, was an instance in which ``public funds are being used and pledged for the advancement and support of a private and sectarian corporation.'' Id. For consideration of the question before it, the Court assumed, arguendo, that a capital appropriation to a religious corporation would violate the Establishment Clause. The Court said plaintiffs' allegations nonetheless failed to show that Providence Hospital was a religious or sectarian body. Merely because the board of directors was composed entirely of members of the same religion did not make the hospital religious. Without additional evidence, the Court was unwilling to assume that Providence Hospital would act otherwise than in accord with its legal charter, in which its powers by all appearances were secular, having to do with the care of the injured and infirm. Although plaintiffs alleged that the hospital's business was ``conducted under the auspices of the Roman Catholic Church,'' there was no evidence that management of the business was limited to members of that faith or that patients had to be Catholic. Id. at 298-99. Bradfield turned on the inadequacies of plaintiffs' pleading and evidence. The Court also had a formalistic view of the importance of separate incorporation by means of a facially neutral charter, notwithstanding that the corporation had a de facto interlocking directorate with a religious order. Accordingly, although the bottom-line result in Bradfield was counter to a no-aid view of the Establishment Clause, the Court utilized a separatistic framework for its analysis. \37\ 487 U.S. 589 (1994). \38\ Id. at 600-02, 622. \39\ 42 U.S.C. SS 300z to 300z-10 (1994). \40\ Kendrick, 487 U.S. at 593, 608-09. \41\ Id. at 595-96, 605-07. \42\ Id. at 614-15. \43\ Id. at 608 (quoting Roemer v. Maryland Pub. Works Bd., 426 U.S. 736, 746 (1976)). \44\ Id. at 609. \45\ Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971). \46\ Kendrick, 487 U.S. at 602-03. \47\ Id. at 604-05, 613. \48\ Id. at 605-06. \49\ Id. at 606-07. \50\ Id. at 610-11. \51\ Id. at 606, 608. \52\ Id. at 611-12. \53\ Id. at 614. \54\ Id. at 615-17. \55\ See supra note 30 and accompanying text. \56\ Kendrick, 487 U.S. at 623 (O'Connor, J., concurring). \57\ Id. Justice O'Connor went on to warn that evidence of a pattern or practice at HHS of disregarding the concerns of the Establishment Clause on an as-applied basis would, in her view, warrant overturning the entire AFLA. Id. at 623-24 (O'Connor, J., concurring). \58\ In making this distinction, Justice O'Connor utilized the sacred/secular dichotomy. See supra note 27. But the dichotomy results in AFLA's constitutionality. In fact, the presumption leads to the facial approval of all welfare programs that permit equal participation by faith-based providers. \59\ 456 U.S. 228 (1982). \60\ Id. at 244, 246. See also Fowler v. Rhode Island, 345 U.S. 67 (1953); Neimotko v. Maryland, 340 U.S. 268 (1951). Religious organizations most willing to conform to contemporary culture are less sectarian. Conversely, those organizations more conservative in theology and that have resisted acculturation will inevitably appear to civil judges as more sectarian. ``To exclude from funding those groups that are more ``sectarian'' is to punish those religions which are countercultural while rewarding those groups willing to secularize. A sociologist has identified the ``pervasively sectarian'' groups as ``orthodox,'' and the ``non-sectarians'' as religious ``progressives.'' Hunter, supra note 4, at 42-46. Hunter says the religious ``orthodox'' are devoted ``to an external, definable, and transcendent authority,'' whereas ``progressives'' ``resymbolize historic faiths according to the prevailing assumptions of contemporary life.'' Id. From the standpoint of wanting to minimize governmental influence on private religious choices, it is hard to imagine a more detrimental rule than for the Supreme Court to penalize the orthodox while rewarding the progressives. \61\ Kiyas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687, 702-07 (1994); see Larson V. Valenta, 456 U.S. 228, 246 n. 23 (1982). The rationale, in part, is that the Court wants to avoid making affiliation with a particular denomination or type of religious group more attractive. If this were not the law, then merely affiliating with a particular religious group could result in a civil advantage or disadvantage. \62\ One problem with the requirement of distinguished between ``pervasively'' and ``non-pervasively'' sectarian organizations is that the level of religiousness of faith- based social service providers is a matter of degree, and there are multiple ways to measure religiousness. Carl H. Esbeck, The Religious of Religious Organizations as Recipients of Governmental Assistance 8-9 (1996). Most providers are neither fully sectarian nor fully secularized. Any multifactor test the courts devise will end up favoring some religious and prejudicing others. Sorting through the array of social service providers would be a veritable briar patch and cause the judiciary to violate its own admonitions concerning entanglement. \63\ See, e.g., Rosenberger v. Rector & Visitors of the Univ. of Va., 115 S. Ct. 2510, 2524 (1995) (university should avoid distinguishing between evangelism, on the one hand, and the expression of ideas merely approved by a given religion on the other); Corporation of the Presiding Bishop v. Amos, 483 U.S. 327, 336 (1987), and id. at 344-45 (Brennan, J., concurring) (recognizing a problem when the government attempts to divine which jobs are sufficiently related to the core of a religious organization as to merit exemption from statutory duties); Bob Jones Univ. v. United States, 461 U.S. 574, 604 n.30 (1983) (avoiding potentially entangling inquiry into religious practice is desirable); Widmar v. Vincent, 454 U.S. 263, 269-70 n.6, 272 n.11 (1981) (holding that inquiries into significance of religious words or events are to be avoided); Walz v. Tax Comm'n, 397 U.S. 664, 674 (1970) (avoiding entanglement that would follow should tax authorities evaluate the temporal worth of religious social welfare programs is desirable). Likewise, in Jimmy Swaggart Ministries v. California Bd. of Equalization, 493 U.S. 378, 396-98 (1990), and Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 20 (1989) (plurality opinion), the Court cautioned against unnecessarily making distinctions between core religious practices (e.g., workship, doctrinal teaching, distributing sacred literature) and those activities of religious organizations that are more ancillary (e.g, operating a soup kitchen or hospital). For similar reasons, courts are to avoid making a determination concerning the centrality of the belief or practice in question to an overall religious system. See Lyng v. Northwest Indian Cemetery Ass'n, 485 U.S. 439, 451 (1988) (rejecting free exercise test that ``depend(s) on measuring the effects of a governmental action on a religious objector's spiritual development''); United States v. Lee, 455 U.S. 252, 257 (1982) (rejecting government's argument that free exercise claim does not lie unless ``payment of social security taxes will . . . threaten the integrity of the Amish religious belief or observance''); Thomas v. Review Bd., 450 U.S. 707, 715-16 (1981) (holding that it is not within the judicial function or competence to resolve religious differences); see also Employment Div. v. Smith, 494 U.S. 872, 886-87 (1990). \64\ Kendrick, 487 U.S. at 624-25 (Kennedy J., concurring). Justice Kennedy's opinion was joined by Justice Scalia. \65\ Id. at 624 (Kennedy, J., concurring). \66\ Id. (Kennedy, J., concurring). \67\ Id. at 624-25 (Kennedy, J., concurring). \68\ Justice Kennedy's opinion is closest to the view of neutrality theorists. But he too falls short. Justice Kennedy would trace the government's funds and disallow any use for the advancement of religion. The neutrality principle, as will be discussed below, infra notes 138-43 and accompanying text, requires only that the Court examine the outcome of the welfare program with an eye to determining whether the public purpose is being served by the social service provider. If so, then the judicial inquiry is at an end, for the government has received full ``secular'' value in exchange for taxpayer funds. \69\ There is no dispute between separationists and neutrality theorists over whether the Establishment Clause prohibits a tax or user fee earmarked for a religious purpose. It clearly does. See infra note 127 and accompanying text. What is disputed is whether monies collected by general taxation and appropriated to support a welfare program that does not discriminate against the participation of faith- based social service providers is constitutional. See infra notes 131-45 and accompanying text. \70\ Grand Rapids Sch. Dist. v. Ball, 473 U.S. 373, 385 (1985). \71\ Tilton v. Richardson, 403 U.S. 672, 689 (1971) (rejecting claim by taxpayers challenging use of revenues for funding of a state program to assist institutions of higher education, including church-affiliated colleges); cf. United States v. Lee, 455 U.S. 252, 257 (1982) (requiring Amish employer to pay Social Security tax in violation of his religious beliefs); United States v. American Friends Serv. Comm., 419 U.S. 7 (1974) (per curiam) (holding that Quakers facing federal income tax liability did not have free exercise rights that overrode provision in anti-injunction act barring claimants from suing to enjoin government from collecting tax). The Court has never recognized a free exercise right to object when revenues raised by general taxation are used to assist the poor or needy by involving faith-based providers in the delivery of welfare services \72\ The Court has recognized a strong protection of religious conscience found in the Free Speech Clause. See Wooley v. Maynard, 430 U.S. 705, 714-15 (1977) (sustaining claim by Jehovah's Witness challenging state requirement that motor vehicle license plate bear the motto ``Live Free or Die'' was violative of freedom of thought, which includes the ``right to refrain from speaking at all''); West Virginia v. Barnette, 319 U.S. 624, 642 (1943) (public school compulsory flag salute and pledge of allegiance ``invades the sphere of intellect and spirit''); see also United States v. Ballard, 322 U.S. 78, 86 (1944) (``Freedom of thought, which includes freedom of religious belief, is basic in a society of free men.''). But such protection does not extend to taxpayers objecting to the monies being paid to faith-based organizations. \73\ See, e.g., John H. Garvey, An Anti-Liberal Argument for Religious Freedom, 7 J. Contempt. Legal Issues 275, 280- 82 (1996) (identifying liberal arguments for church/state separation as, inter alia, the protection of society from political strife); Douglas Laycock, Religious Liberty as Liberty, 7 J. Comtemp. Legal Issues 313, 317 (1996) (one reason for no-establishment principle is to minimize the societal conflict that attends use of governmental force to suppress religion); Ira C. Lupu, To Control Faction and Protect Liberty: A General Theory of the Religion Clauses, 7 J. Contemp. Legal Issues 357, 360-62 (1996) (no-establishment principle arose in response to the grave risk of political disharmony resulting from uncontrolled religious factionalism). Typically the concern with religion dividing the body politic is buttressed by reference to European religious wars, which were known to the founding generation, as well as by warnings that point to modern-day Northern Ireland, Bosnia, or Lebanon. These are indeed events worthy of avoidance. But separationists omit an obvious distinction between these instances of sectarian strife and the goal of neutrality theory. The sectarian wars of medieval Europe were wars for religious monopoly. Each side sought to defeat the other so as to establish its own religious hegemony. Neutrality theory has no such goal. Indeed, its goal is just the opposite, If the neutrality principle were to be followed, then government's influence over religion would be minimized and each individual's religious choices would be more fully enabled. See infra note 98 and accompanying text. In their concern for preventing sectarian strife, an additional point overlooked by separationists is that the Establishment Clause (indeed, the entire Bill of Rights) is a check on government--not a check on religion. Thus, the no- establishment principle guards against government's using its power inappropriately taking sides on behalf of a religion. Simply put, the Clause protects people from government. It does not protect people from other people. It does not protect a minority religion from a majority religion. And it does not protect the nonreligious from the religious. Separationists are prone to assume that religious ideologies are more intolerant and absolutist than secular ideologies; thus, they believe that the Establishment Clause is there specifically to hold in check the excesses of religion. But it is only the excesses of government that the Clause can check. See Douglas Laycock, Continuity and Change in the Threat to Religious Liberty: The Reformation Era and the Late Twentieth Century, 80 Minn. L. Rev. 1047, 1048, 1089-95, 1102 (1996). In the twentieth century, secular ideologies have proven every bit as violent as the sectarianisms of the Middle Ages. \74\ The most compelling argument for a continued strict separation of church and state is the harm that can befall religion itself when faith-based ministries become unduly involved with governmental programs and benefits. Preserving the autonomy of religious providers is beyond the scope of this Article. This author has touched briefly on the matter elsewhere. See Esbeck, supra note 62, at 47-51; Carl H. Esbeck, Religion and a Neutral State: Imperative or Impossibility? 15 Comberland L. Rev. 67, 80-83 (1984-85). Others have also published on the topic. See, e.g., Besharov, supra note 12; Marvin Olasky, The Corruption of Religious Charities, in To Empower People: From State to Civil Society ch. 8 (Michael Novak, ed., 2d ed. 1996); Joe Loconte, The 7 Deadly Sins of Government Funding for Private Charities, Policy Rev., Mar./Apr. 1997; Amy L. Sherman, Cross Purposes: Will Conservative Welfare Reform Corrupt Religious Charities? Policy Rev., Fall 1995, at 58-63; David Walsh, Irreducible, Inexplicable: The Effort to Carve Out a Utilitarian, Public- Policy Role for Religion Strikes at the Core of Faith, Wash. Post, Mar. 1, 1996, at A17. Nonetheless, the available materials are few and anecdotal, and religious autonomy as an important topic warrants more attention by scholars and judges alike. \75\ There was a time when the Supreme Court, in its interpretation of the Establishment Clause, sought out political divisiveness along religious lines as a violation of the Clause. However, such evidence as a separate element of Establishment Clause doctrine is now repudiated. Corporation of Presiding Bishop v. Amos, 483 U.S. 327, 339 n.17 (1987); Lynch v. Donnelly, 465 U.S. 668 684-85 (1984); Mueller v. Allen, 463 U.S. 388, 403-04 n.11 (1983). The foregoing cases essentially rejected broad language in earlier cases. See Wolman v. Walter, 433 U.S. 229, 256 (1977) (Brennan, J., concurring and dissenting); id. at 258-59 (Marshall, J., concurring and dissenting); Meek v. Pittenger, 421 U.S. 349, 374-77 (1975) (Brennan, J., concurring and dissenting); Lemon v. Kurtzman, 403 U.S. 602, 622-23 (1971). Political divisiveness analysis was heavily criticized because it ran counter to the Court's recognition elsewhere that religious persons and groups have full rights of free speech and political participation. See Edward M. Gaffney, Political Divisiveness Along Religious Lines: The Entanglement of the Court in Sloppy History and Bad Public Policy, 24 St. Louis U. L.J. 205 (1980). \76\ An example of this is found in Sec. 104 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 42 U.S.C. Sec. 604a (1996 Supp.). Section 104, known by the popular name ``Charitable Choice,'' permits the involvement of faith-based providers in the delivery of welfare services funded by the federal government through block grants to the states. For those faith-based providers that choose to participate, Sec. 104(b), (d), and (f) set forth several rights of provider autonomy from excessive governmental regulation. \77\ To these three requisites (a public purpose of social betterment, nondiscrimination, and religious autonomy), neutrality theory adds the right of the ultimate beneficiaries to obtain their services from a nonreligious provider if they have a sincere objection to a particular faith-based provider. See infra note 138 and accompanying text. \78\ Some argue that the Establishment Clause, while prohibiting the establishment of a single national religion, was nevertheless intended to allow Congress to support all religious denominations on a nonpreferential basis. This is unlikely. When drafting the First Amendment the First Congress was almost entirely negative concerning the Amendment's intent, i.e., the new central government was to have no authority concerning religion. Hence, the Establishment Clause detailed what the new central government could not to rather than what it could do. Thomas J. Curry, The First Freedoms: Church and State in America to the Passage of the First Amendment 198-222 (1986). The Supreme Court rejected nonpreferentialism in Wallace v. Jaffree, 472 U.S. 38, 68 (1985) (O'Connor J., concurring); id. at 113 (Rehnquist, J., dissenting). See also Lee v. Weisman, 505 U.S. 577, 612-18 (1992) (Souter, J., concurring); Douglas Laycock, ``Nonpreferential'' Aid to Religion: A False Claim About Original Intent, 27 Wm. & Mary L., Rev. 875 (1986). For arguments in support of nonpreferentialism, see Wallace, 472 U.S. at 98 (Rehnquist, J., dissenting); Robert Cord, Separation of Church and State: Historical Fact and Current Fiction (1988); Michael Malbin, Religion and Politics: The Intentions of the Authors of the First Amendment (1978); Rodney K. Smith, Nonpreferentialism in Establishment Clause Analysis: A Response to Professor Laycock, 65 St. John's L. Rev. 245 (1991). For present purposes it is important that the neutrality principle not be confused with nonpreferentialism. The distinction is clearly drawn in Justice Thomas's concurring opinion in Rosenberger v. Rector & Visitors of the Univ. of Va., 115 S. Ct. 2510, 2528-30 (1995) (Thomas J., concurring). \79\ Although the Supreme Court has never had before it a situation involving a direct program of aid for religious organizations alone, obiter dicta in various cases suggest that any such program would be unconstitutional. See Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687, 702-07 (1994) (legislation favoring one religious sect is unconstitutional); Committee for Pub. Educ. v. Nyquist, 413 U.S. 756 (1973) (striking down state aid to private education the benefits of which went almost entirely to religious schools); cf. Mueller v. Allen, 463 U.S. at 394, 396 n.6, 398-99 (explaining and distinguishing Nyquist). \80\ See supra text accompanying notes 27-29. \81\ 454 U.S. 263 (1981). \82\ Id. at 271-74. \83\ Equal Access act, 20 U.S.C. Sec. Sec. 4071-4074 (1994). The constitutionality of the Act was upheld in the face of an Establishment Clause challenge in Board of Education v. Mergens, 496 U.S. 226 (1990). \84\ 508 U.S. 384 (1993) (disallowing viewpoint discrimination against a church that had sought to show a film about family life in a forum otherwise open to that subject). \85\ 115 S. Ct. 2440 (1995) (finding content-based discrimination in the refusal to permit a controversial group to sponsor a religious display in a civic park). Because Pinette is illustrative of the current divisions within the Court over separationism, the case is further discussed infra notes 101-11 and accompanying text. \86\ 115 S. Ct. 2510 (1995) (finding viewpoint discrimination in a public university's denial of printing costs for a student publication postulating religious perspectives on current issues). Because Rosenberger involved the Court in requiring a state university to finance a student publication that printed religious views--not just the provision of space in a public forum--the case is further discussed infra notes 112-30 and accompanying text. \87\ When the expression is not private speech but speech by government, then the controlling norm remains a separationist model. This seems entirely proper. Government may neither confess inherently religious beliefs not advocate that individuals profess such beliefs or observe such practices. Several cases illustrate this point. See Lee v. Weisman 505 U.S. 577 (1992) (striking down prayer in conjunction with commencement ceremonies at a public junior high); County of Allegheny v. ACLU, 492 U.S. 573 (1989) (disallowing display of nativity scene inside courthouse, but upholding display of menorah outside public building as part of larger holiday scene); Stone v. Graham, 449 U.S. 39 (1980) (per curiam) (striking down state law requiring posting of Ten Commandments in public school classrooms); Epperson v. Arkansas, 393 U.S. 97 (1969) (striking down state law prohibiting teaching theory of evolution in public schools); School Dist. v. Schempp, 374 U.S. 203 (1963) (disallowing devotional reading of Bible and recitation of Lord's Prayer in public schools); Engel v. Vitale, 370 U.S. 421 (1962) (disallowing state requirement of daily classroom prayer in public schools); and McCollum v. Board of Educ., 333 U.S. 203 (1948) (disallowing program in which local volunteers came to public school campus to teach religion). Lynch v. Donnelly, 465 U.S. 668 (1984), and Marsh v. Chambers, 463 U.S. 783 (1983), are two aberrations. But Lynch and Marsh, while antiseparationist to be sure, are not based on equality either. Rather, in their rationales, Lynch and Marsh are driven by a desire to cling to historical practices dating from a time when America was less religiously plural. \88\See infra notes 90-100 and accompanying text. \89\ See infra notes 133-35 and accompanying text. \90\ A ``benefit'' means direct or indirect financial assistance for a public purpose. The benefit may be in the form of a subsidy, grant, entitlement, loan, or insurance, as well as a tax credit or deduction. A tax exemption, such as that upheld in Walz v. Tax Commission, 397 U.S. 664, 676 (1970), is to be distinguished from tax credits and deductions. Credits and deductions are government benefits. A tax exemption, however, is the government's election to ``leave religion where it found it,'' rather than the conferring of a benefit. For First Amendment purposes a tax credit or deduction should all be regarded alike as ``tax expenditures,'' while useful in other areas of fiscal policy, does not make sense in dealing with issues that arise under the Establishment Clause. See Dean M. Kelley, Why Churches Should Not Pay Taxes 11-13, 47-57 (1977); Boris I. Bittker, Churches, Taxes and the Constitution, 78 Yale L.J. 1285 (1969); Boris I. Bittker & George K. Rahdert, The Exemption of Nonprofit Organizations from Federal Income Taxation, 85 Yale L.J. 299, 345 (1976). \91\ A ``burden'' means a regulation, a tax, or a criminal prohibition. \92\ 483 U.S. 327 (1987). \93\ Id. at 335. See also Trans World Airlines v. Hardison, 432 U.S. 63, 90 (1977) (Marshall, J., dissenting) (stating that constitutionality of labor law not placed in doubt simply because it requires religion exemption); Gillette v. United States, 401 U.S. 437 (1971) (religious exemption from military draft for those who oppose all war does not violate Establishment Clause); Walz, 397 U.S. 664 (upholding property tax exemptions for religious organizations); Zorach v. Clauson, 343 U.S. 306 (1952) (upholding release time program for students to attend religious exercises off public school grounds); Selective Draft Law Cases, 245 U.S. 366 (1918) (upholding, inter alia, military service exemptions for clergy and theology students). Estate of Thorton v. Caldor, Inc., 472 U.S. 703 (1985), is not to the contrary. In Thorton, the Court struck down a state law favoring Sabbath observance. However, as explained in Hobbie v. Unemployment Appeals Commission, 480 U.S. 136, 145 n.11 (1987), the Sabbath law was struck down because the state cannot utilize classifications that single out a specific religious practices, thereby favoring that particular practice, as opposed to language inclusive of a general category of religious observances. For example, if Saturday as a day of rest is legislatively required to be accommodated by employers, all religious practices to be excused (including all religious days of rest) must be required to be accommodated. If a kosher diet is required to be accommodated by commercial airlines, then all religious practices (including all religious dietary requirements) must be accommodated. If a student absence from school is excused for Good Friday, then all absences for all religious holy days must be accommodated. Id. The special needs of national defense maker Gillette distinguishable from Thorton. In Gillette, Congress was permitted to accommodate ``all war'' pacifists but not ``just war'' inductees because to broaden the exemption would invite increased church/state entanglements and would render almost impossible the fair and uniform administration of the Selective Service System. Gillette, 401 U.S. at 450. The only decision that does appear to be at odds with the principle followed in Amos and these other cases is Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989) (plurality opinion) (disallowing sales tax exemption for purchases of religious literature). \94\ The Court was most explicit in making the salient distinction between benefits and burdens in Amos. Pointing out that it had previously upheld laws that helped religious groups advance their purposes, the Court explained: A law is not unconstitutional simply because it allows churches to advance religion, which is their very purpose. * * * (I)t must be fair to say that the government itself has advanced religion through its own activities and influence. * * * (T)he Court * * * has never indicated that statutes that give special consideration to religious groups are per se invalid. 483 U.S. at 337, 338. \95\ U.S. Const. amend. I. The Establishment Clause, in its entirety, provides: Congress shall make no law respecting an establishment of religion . . . . U.S. Const. amend. I. \96\ Douglas Laycock, Towards a General Theory of the Religion Clauses, 81 Colum. L. Rev. 1773, 1416 (1981). \97\ Walz, 397 U.S. at 676 (It is desirable when government refrains from imposing a burden on religion so as ``to complement and reinforce the desired separation insulating each from the other.'') \98\ Unleashing personal religious choice as the core value of the Establishment Clause is not being elevated here as good theology, just good jurisprudence. It is good jurisprudence because religious choice as a core value allows each religion to flourish or die in accord with its own appeal. Choice as the controlling legal standard maximizes liberty of both the individual and the religious community, while neutralizing the impact of governmental action on religious life. In these respects it is biased toward a Western conception of human rights and a limited state. This bias, however, is cause for neither surprise nor apology. It is the Founders' legacy, and they were decidedly Western. Good theology is another matter; for observant Jews and Christians, religious liberty consists not in doing what we choose, but in the freedom to do what we ought. In Jewish and Christian orthodoxy, belief and practice are understood in terms of truth, not choice. The point here is that it should not be troubling that religious choice is the core value when interpreting the Establishment Clause. There is no reason that law and theology must converge on this point. It is sufficient that law maximizes the individual's freedom to pursue a direction indicated by his or her theology. \99\ In Dodge v. Salvation Army, 48 Empl. Prac. Dec. (CCH) ae 38,619 (S.D. Miss. 1989), a strange case with an unfortunate holding, a religious social service ministry dismissed an employee when it was discovered she was a member of the Wiccan religion and was making unauthorized use of the office photocopy machine to reproduce cultic materials. When the employee sued, claiming religious discrimination, the Salvation Army invoked the ``religious organization'' exemption in Title VII, 42 U.S.C. Sec. 2000e-1 (1994). The employee countered that the Title VII exemption should not apply because her salary was substantially funded by a federal grant. The trial court agreed with the employee, holding that the Title VII exemption for religious discrimination by a religious organization was unconstitutional on these facts. The trial court thought the exemption advanced religion in a manner violative of the Establishment Clause when applied to government-subsidized jobs. 48 Empl. Prac. Dec., at 55,409. The holding in Dodge was a mistake. The trial court failed to observe the burden/benefit distinction when it ran together the separate issues of benefits and burdens. The question of whether the Salvation Army may receive a direct benefit consonant with the Establishment Clause is controlled by Bowen v. Kendrick, 487 U.S. 589 (1988). The answer to that question, whether ``yes'' or ``no,'' is entirely independent of the question of whether the Salvation Army may claim the Title VII exemption from the regulatory burden of compliance with the civil rights law. The Court's decision in Amos holding that the Title VII exemption did not violate the Establishment Clause had already answered the second question in the affirmative. Amos, 483 U.S. 327. A better reasoned result, one contrary to Dodge, was reached by the federal court in Young v. Shawnee Mission Medical Center, No. CIV.A. 88-2321-3, 1988 LEXIS 12248 (D. Kan. Oct. 21, 1988) (rejecting argument that Seventh-day Adventist Hospital lost its title VII exemption because it received federal Medicare funding). \100\ Shifting the analysis from benefits to burdens does not mean moving the baseline from which the neutrality of the government's action is measured. The baseline is not rooted in history or time, but in the principle of minimizing government's impact on personal religious choice. As previously conceded, this choice of baseline is not genuinely neutral. See supra notes 10-11. Thus, whether assessing the constitutionality of a benefit or a burden, the location of the baseline is consistent, albeit not neutral. This combination of receiving equal access to governmental benefits but being specially relieved of burdens carried by others occurred in Hsu v. Roslyn Union Free School District, 85 F.3d 839 (2d Cir.), cert. denied, 117 S. Ct. 608 (1996). In Hsu, a student religious club claimed the right to meet on the campus of a public high school on the same basis as other noncurricular student organizations. The religious club had a right to this benefit under a federal statutory law and the Free Speech Clause. However, when it came to its selection of leaders, the school prohibited the club from selecting only Christians. The appeals court held that as to officers with spiritual functions the club had a right to be relieved of the school's nondiscrimination requirement. Election of leaders sharing the same faith was essential to the club's self-definition, as well as the maintenance of its associational character and continued expression as a Christian club. Id. at 856-62. Logically, the same result would be reached under the Free Exercise Clause. \101\ 115 S. Ct. 2440 (1995). \102\ 115 S. Ct. 2510 (1995). \103\ Pinette, 115 S. Ct. at 2445. \104\ Id. at 2447-50. Justice Thomas wrote separately stating his view that the content of the Klan's message was political rather than religious. Id. at 2450-51 (Thomas, J., concurring). \105\ Id. at 2455 (O'Connor, J., concurring). Justice O'Connor's opinion was joined by Justices Souter and Breyer. \106\ Id. at 2452-53 (O'Connor, J., concurring). \107\ Id. at 2454 (O'Connor, J., concurring). \108\ Id. at 2458-59 (Souter, J., concurring). \109\ Id. at 2464 (Stevens, J., dissenting). \110\ Id. at 2475 (Ginsburg, J., dissenting). \111\ See Kathleen M. Sullivan, Religion and Liberal Democracy, 59 U. Chi. L. Rev. 195, 197-214, 222 (1992) (the First Amendment's negative bar against an establishment of religion implies an affirmative establishment of a secular public order). To be sure, the Establishment Clause prohibits the establishment of a national church, which of course was no more likely in 1789-91 than it is today. But the Clause does not thereby establish a new religion of Secularism. Rather, no credo is by law established, setting at liberty the hearts of all to embrace any faith or none, as each is persuaded concerning such matters. \112\ 115 S. Ct. 2510 (1995). \113\ Id. at 2515. \114\ Id. at 2514-15. \115\ Id. at 2513. \116\ Id. at 2520-21. \117\ Id. at 2516. \118\Id. at 2516-18. \119\ Id. at 2515. \120\ Id. at 2519-20. \121\ Id. at 2521 (citations and internal quotations omitted). \122\ Id. at 2522. \123\ Id. at 2523-24. \124\ Id. at 2524. \125\ Id. at 2528 (O'Connor, J., concurring). \126\ Id. at 2526-27 (O'Connor, J., concurring). \127\ Id. at 2528 and n.1 (Thomas, J., concurring). \128\ Id. at 2528-30 (Thomas, J., concurring). Cf. id. at 2536 n.* (Souter, J., dissenting). The Supreme Court has already rejected an argument by federal taxpayers that the Free Exercise Clause is violated should they as contributors to the nation's general tax revenues have to ``pay for'' benefits provided to religious organizations. See supra note 71. \129\ Rosenberger, 115 S. Ct. at 2535-39 (Souter, J., dissenting). \130\ Id. at 2544-47 (Souter, J., dissenting). \131\ Justice O'Connor's ``no endorsement test,'' was first advanced in the Christmas nativity scene case of Lynch v. Donnelly, 465 U.S. 668, 687 (1984) (O'Connor, J., concurring). \132\ In a departure from the separationist view, Justice O'Connor's no endorsement test is not a funds-tracing analysis. Rather, her reliance on the objective observer is an appearance-of-impropriety analysis. Instead of focusing on whether religion is advanced by direct funding, as separationists do, Justice O'Connor is concerned with the civic alienation felt by her observer as she looks at welfare legislation aiding social service providers, including those that are faith-based. Accordingly, the issue for Justice O'Connor is not whether the aid has the effect of advancing religion, but whether it appears to single out religion for favoritism. \133\ See also Church on the Rock v. City of Albuquerque, 84 F.3d 1273 (10th Cir.), cert. denied, 117 S. Ct. 360 (1996). Following Rosenberger and Pinette, the appeals court in Church on the Rock struck down a congressional prohibition on private religious speech, thereby permitting access to senior citizen centers funded in part by the federal government. The Free Speech Clause was again the source of the right to equal treatment. \134\ The Free Exercise Clause prevents a legislature from adopting a welfare program in which a broad array of providers, governmental and independent, are eligible, but expressly excluding faith-based providers because they are religious. Thus, equal treatment is commanded by the Free Exercise as well as the Free Speech Clause. See supra note 26 and accompanying text. While admitting to a prima facie violation of the Free Exercise Clause, separationists argue that stopping all funding to religious organizations serves the ``compelling interest'' of compliance with the Establishment Clause. But this argument was rejected as to the Free Speech Clause in Rosenberger, 115 S. Ct. at 2520-25. Moreover, there is nothing in the wording of the First Amendment that suggests that when clauses ostensibly ``conflict,'' the Establishment Clause overrides the Free Exercise and Free Speech Clauses. One could just as easily presume that the Free Exercise and Free Speech Clauses supersede the Establishment Clause. Of course, there is no conflict between these Clauses when the neutrality principle is followed. See infra notes 155-57 and accompanying text. \135\ It might be asked whether the Court majority would still have found the Establishment Clause defense unsuccessful in Widmar, Lamb's Chapel, Pinette, and Rosenberger, in the absence of the claimants' successful free speech claim. The answer is ``yes.'' In each case the free speech and no-establishment questions were considered independently of the other. Never did the Court suggest that the Free Speech Clause overrode the Establishment Clause. In each case the government voluntarily opened a limited public forum, and it was clear the government retained the authority to close the forum to all speakers. Free speech did not add the margin of victory over the no-aid-to-religion defense. What is required of government is that it have a secular purpose for its benefit program. That purpose may be the provision of a forum for a diverse array of speech, but the purpose may also be meeting the welfare needs of the poor. \136\ Pub. L. 104-155, 104th Cong., (1996), signed into law by the President on July 3, 1996. \137\ Id. at Sec. 4(a)(1). \138\ See Sec. 104 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 42 U.S.C. Sec. 604a (1996 Supp.). Known by the popular name of ``Charitable Choice,'' Sec. 104 permits states to involve faith-based providers in the delivery of welfare services funded by the federal government through block grants to the states. Subsection 104(e) provides that if a beneficiary has a religious objection to receiving social services from a faith-based provider, he or she has a right to obtain services from a different provider. \139\ This can be accomplished by fiscal audits of monies from governmental sources, as well as by end-result evaluations during performance reviews undertaken to ensure that the needs of the beneficiaries targeted by the legislation are being served. Such intrusions are a tolerable level of interaction between religion and government. \140\ An example of this model is found in the regulations to the federal Child Care Block Grant Act of 1990, providing, inter alia, certificates to low-income parents who may then ``spend'' the benefit at the child care provider they select for their child. The regulations state that the monies from such certificates: (3) May be used for child care services provided by a sectarian organization or agency, including those that engage in religious activities, if those services are chosen by the parent; (and) (4) May be expended by providers for any sectarian purpose or activity, including sectarian worship or instruction. * * * 42 C.F.R. Sec. 98.30(c). \141\ Inquiry into ``purpose'' may go beyond the mere text or ``face'' of a statute. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533-35 (1993); see Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687, 699 (1994). Legislative purpose, however, should not be confused with legislative motive. A judicial inquiry may not go into the subjective motive of each legislator supporting a legislative bill. A motive analysis would not only have implications for the denial of religious freedom (McDaniel v. Paty, 435 U.S. 616, 641 (1978) (Brennan, J., concurring in the judgment), but also for violating the separation of powers (United States v. O'Brien, 391 U.S. 367, 383 (1968)). See Board of Educ. v. Mergens, 496 U.S. 226, 249 (1990) (plurality opinion) (``Even if some legislators were motivated by a conviction that religious speech in particular was valuable and worthy of protection, that alone would not invalidate the Act, because what is relevant is the legislative purpose of the statute, not the possibly religious motives of the legislators who enacted the law.''). \142\ To require states to distinguish between ``pervasively'' and ``non-pervasively'' sectarian organizations would seem to violate one of the venerable rules of the Establishment Clause, to the effect that government is not to intentionally discriminate among religious groups. Larson v. Valente, 456 U.S. 228 (1982), See also supra notes 59-63, and accompanying text. Under neutrality theory this inconsistency is avoided. \143\ Committee for Pub. Educ. v. Nyquist, 413 U.S. 756, 780 (1973). \144\ See Henry G. Cisneros, U.S. Dep't of Hous. and Urban Dev., Higher Ground; Faith Communities and Community Building 6-12 (1996) (citing studies and examples of the success of faith-based community development activities); National Inst. on Drug Abuse, U.S. Dep't of Health, Educ. and Welfare, An Evaluation of the Teen Challenge Treatment Program (1977) (showing a materially higher success rate for faith-based over secular drug treatment programs for youth); Religious Institutions as Partners in Community Based Development, in Progressions: A Lilly Endowment Occasional Report (Feb. 1995) (noting success with community-based development that came only after involving the local church). \145\ See supra notes 92-97 and accompanying text. \146\ See supra notes 59-63, 78-79, 87, 93, infra notes 149-51 and accompaning texts. \147\ ``Inherent religious'' means those intrinsic and exclusively religious activities of worship and the propagation or inculcation of the sort of matters that comprise confessional statements or creeds. In addition, the term includes the supernatural claims of churches, mosques, synagogues, temples, and other houses of worship, using those words not to identify buildings, but to describe the confessional community around which a religion identifies and defines itself, conducts its worship, teaches doctrine, and propagates the faith to children and adult converts. Although a view of religion and life as an integrated whole is desirable, for purposes of the Establishment Clause it becomes necessary to recognize that some core beliefs and practices are ``inherently religious.'' The necessity of a fixed boundary in church/state relations requires a uniform legal standard in drawing the line of church/state separation. The line of separation cannot be drawn differently for each religious organization based on its own unique definition of religion. That would amount to governmental discrimination among religions (a violation of the rule stated in Larson, 456 U.S. 228 (1982)). This is not to say that the Supreme Court has resolved all the definitional problems by confining Establishment Clause analysis to matters ``inherently religious.'' The Court's determination as to what is ``inherently religious'' inevitble will favor the philosophy of modern rationalism (its underlying tenets will appear arguably nonreligious) while disfavoring familiar theistic religions such as Christianity, Judasim, and Islam (their tenets and practices appearing inherently religious). See Phillip E. Johnson, Concepts and Compromise in First Amendment Religious Doctrine, 72 Cal. L. Rev. 817, 834-35 (1984). But as stated above, this is a consequence of the impossibility of the Establishment Clause's being ``neutral'' as to all world views. See supra notes 10-11 and accompanying text. \148\ The Supreme Court has found that prayer, devotional Bible reading, veneration of the Ten Commandments, classes in confessional religion, and the biblical story of creation are all inherently religious. See Lee v. Weisman, 505 U.S. 577 (1991) (prayer); Edwards v. Aguillard, 482 U.S. 578 (1987) (creationism); Wallace v. Jaffree, 472 U.S. 38 (1985) (prayer); Stone v. Graham, 449 U.S. 39 (1980) (per curiam) (Ten Commandants); Epperson v. Arkansas, 393 U.S. 97 (1968) (creationism); School Dist. v. Schempp, 374 U.S. 203 (1963) (prayer and Bible reading); Engle v. Vitate, 370 U.S. 421 (1962) (prayer); McCollum v. Board of Educ., 333 U.S. 203 (1948) (teaching religion). On the other hand, legislation restricting abortion, Sunday closing laws, rule prohibiting interracial marriage, and teenage sexuality counseling are not inherently religious. See Bowen v. Kendrick, 487 U.S. 589 (1988) (teenage counseling; Bob Jones Univ. v. United States, 461 U.S. 574, 604 n.30 (1983) (interracial marriage); Harris v. McRae, 448 U.S. 297 (1980) (abortion restrictions); McGowan v. Maryland, 366 U.S. 420 (1961) (Sunday closing law); Two Guys from Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582 (1961) (Sunday closing law). \149\ The Establishment Clause is not violated when a governmental social program merely reflects a moral judgment, shared by some religions, about conduct through beneficial (or harmful) to society. Kendrick, 487 U.S. at 604 n.8, 613; Harris, 448 U.S. at 319-20; McGowan, 366 U.S. at 442; Hennington v. Georgia, 163 U.S. 299, 306-07 (1896); see Bob Jones Univ., 461 U.S. at 604 n.30. Thus, overlap between a law's purpose and the moral teaching of some religions does not, without more, render the law one ``respecting an establishment of religion. \150\ The Supreme Court has held that when a law of general public purpose has a disparate effect on various religious organizations, the Establishment Clause is not violated. Hernandez v. Commissioner, 490 U.S. 680, 696 (1989); Bob Jones Univ., 461 U.S. at 604 n. 30; Larson, 456 U.S. at 246 n. 23. \151\ The Supreme Court has held that the Establishment Clause prohibits government from purposefully discriminating among religious groups. Larson, 456 U.S. 228; Fowler v. Rhode Island, 345 U.S. 67 (1953); Niemotko v. Maryland, 340 U.S. 268 (1951). \152\ See F. William O'Brien, The Blaine Amendment 1875- 1876, 41 U. Det. L.J. 137 (1963); Note, Beyond the Establishment Clause; Enforcing Separation of Church and State Through State Constitutional Provisions, 71 Va. L. Rev. 625 (1985). Although dated, a useful work in the area of religion and state constitutions is Chester James Antieau et al., Religion Under the State Constitutions (1965). \153\ See supra note 144. \154\ See Esbeck, supra note 62; Stephen V. Monsma, When Sacred and Secular Mix; Religious Nonprofit Organizations and Public Money (1996). \155\ 456 U.S. 228. See supra notes 59-60 and accompany text. \156\ See supra notes 61-63 and accompanying text. \157\ 508 U.S. 520 (1993). See supra notes 26 and 134. Madam Chairman, I yield back the balance of my time.

Mr. SOUDER. Madam Chairman, first I yield myself 30 seconds. What the gentlemen said was witches were not likely to be funded; but that is not my decision, and we do not know. But what is true is that the current administration already makes these decisions in HUD; they have an entire division that makes these decisions in HUD. They go through it, it is public review. It has worked tremendously well. It is one of the only ways to reach poor people, and I am disappointed that a few people in this House separate themselves from the leadership of both parties in arguing for charitable choice. Madam Chairman, I yield 3 minutes to the distinguished gentleman from Kansas (Mr. Tiahrt).

Mr. SOUDER. Madam Chairman, will the gentleman yield?

Mr. SOUDER. Madam Chairman, I would agree to such an amendment and believe it is consistent with what we have been doing all the way along and consistent with court decisions that we cannot discriminate among recipients.

Mr. SOUDER. Madam Chairman, I would request that that be done.

Mr. SOUDER. Madam Chairman, I ask unanimous consent to modify my amendment.

Mr. SOUDER. Madam Chairman, will the gentleman yield?