Hollman Report

Next chapter of faith-based initiatives debate approaches

By K. Hollyn Hollman

July-August 2008

The next president, like each before him, will have a crucial role in preserving and promoting our nation’s commitment to religious freedom. The president sets executive branch policy, nominates Supreme Court justices, influences Congress as the head of his party, and represents America’s values and priorities to the world. Among the most significant religious liberty policy decisions facing the next president will be what to do with the inheritance of the Bush administration’s bureaucracy of “faith-based” offices and executive orders. How will the next president lead in the area of cooperation between government and religious entities that provide social services?

The BJC has been a watchdog and critic of much of the Bush administration’s faith-based policy, as we were when related policies were proposed during the Clinton administration. We remain skeptical about much of what has been pursued under the description of “faith-based initiatives” and the utility of a separate bureaucracy to enhance the relationship between religious institutions and government. While no major presidential candidate expressed a willingness to completely reverse course, there will no doubt be changes in the next administration. It is an opportune time to review the history, clarify our concerns, and ask the candidates to consider our perspective on protecting religious liberty as they formulate the policies for their potential administrations.

Background

The BJC was an early leader in monitoring the changes in policy regarding the cooperation between religious institutions and government, sounding the alarm when “charitable choice” was first introduced. “Charitable choice” is part of what has come to be known as the faith-based initiative. It is specific legislative language inserted in a handful of 1990s-era social services legislation, such as the 1996 Welfare Reform Act and the Substance Abuse and Mental Health Services Administration (SAMHSA) Act. Indeed, BJC Executive Director J. Brent Walker wrote an op-ed published in The New York Times in September 1995 warning that welfare reform legislation risked adding new flaws to the system by allowing government funding of churches to provide social services, noting that “Churches would receive money directly and could require people to listen to a sermon, as they wait in line for a sandwich.”

Still, charitable choice provisions were inserted with little debate or scrutiny, a fact made plain in the ways those early statutes vary, often resulting in conflicting provisions within the same statute. The damage was mitigated as President Clinton issued signing statements that cited constitutional constraints and expressly prohibited funds from flowing directly to pervasively sectarian institutions (religious organizations that do not or cannot separate religious activities from the government-funded programs).

In 2001, President Bush made his faith-based initiative a top domestic priority, and the BJC’s job as watchdog and critic became even more important. The administration opened its White House Office of Faith-based and Community Initiatives (to be followed by numerous offices in the agencies) and proposed legislation to expand “charitable choice” to all federal social service programs. The BJC’s monitoring of the faith-based initiative and efforts to influence the debate increased and were greatly strengthened by our work in coordination with the Coalition Against Religious Discrimination (CARD), a network of more than 70 religious, civil rights, labor, health, and advocacy organizations that oppose efforts to allow federal tax dollars to fund religious discrimination. CARD was formed in response to “charitable choice.” This legislation stalled in Congress, in large part, because of the concerns CARD raised. Thereafter, CARD continued to advocate in response to executive orders that systematically altered federal regulations affecting nearly all federal social service programs, making it easier for faith-based organizations to participate in federal grant programs without the traditional safeguards that protect religious liberty.

Current Policy Perspective

To help the next president pursue a better policy course, CARD wrote the candidates and party platform committees, summarizing this history and outlining ways to restore religious liberty and civil rights in policies regarding the role of community and religious organizations in providing government-funded social services. A copy of the letter to the candidates is available at www.BJConline.org. Here are the major points:

Recognize the Historic Role of Religious Groups in Providing Social Services

Religious organizations have a longstanding and proud tradition of providing social services, including in some cases, with the use of government funds. Such participation long predates “charitable choice.” Traditionally, religious organizations that have accepted government funds to provide such services have played by the same rules as other providers. Despite the rhetoric surrounding the debate, a “faith-based initiative” is not necessary for government collaboration with religious groups.

No Discrimination in Government-funded Positions

Title VII of the Civil Rights Act of 1964, prohibits discrimination in employment on the basis of race, national origin, color, religion, or sex, but grants an exemption to religious organizations, allowing them to adopt hiring practices that favor fellow adherents of their particular faith. While it has been generally accepted that this exemption applies when the religious organization is using its own funds, the religious organizations that have traditionally partnered with the government did not engage in religion-based hiring for positions that were funded with taxpayer money. We should not allow religious organizations to take government funds and use those funds to discriminate in hiring a qualified individual based on nothing more than his or her religious beliefs.

Respect State and Local Anti-discrimination Laws

As implemented, faith-based initiatives can seriously threaten the enforceability of state and local civil rights laws that provide more extensive coverage against employment discrimination than federal law. Policies that encourage cooperation between religious entities and the government should not be used to override hard-won civil rights protections at the state and local level.

Protect the Autonomy of Houses of Worship

As a policy, “charitable choice” fundamentally alters how the federal government contracts with faith-based organizations for the provision of social services. Before “charitable choice,” religious organizations had already been among the main providers of social services. “Charitable choice,” however, permits public funds to flow directly to houses of worship without establishing a separate, religiously affiliated 501(c)(3) organization. Direct government funding of houses of worship represents a radical erosion of First Amendment principles, endangering the autonomy of religious bodies by allowing government intrusion directly into the activities of houses of worship. Rather than singling out religious institutions for an additional “burden,” requiring funding to go to separately incorporated religious institutions serves to protect the integrity of the religious institutions while providing accountability for government funds.

Protect the Religious Liberty of Beneficiaries

While current federal regulations provide that government cannot directly fund “inherently religious activities, such as worship, religious instruction, or proselytization as part of the program,” they fail to adequately protect the religious liberty of beneficiaries. Recognizing that some religious social service providers integrate religion into their services and cannot be funded by the government constitutionally, current regulations require only that “inherently” religious activities should be separated in time or place from government-funded services. They fail to require adequate notice to beneficiaries about their rights or provide oversight to ensure that religious liberty rights of beneficiaries are respected. Neither beneficiaries nor our religious institutions are served by rules that do clearly and adequately delineate the rights and responsibilities for each party.

All of these concerns are important and the CARD letter concludes by noting that much that has been pursued under the label “faith-based initiative” has been counterproductive, undermining fundamental civil rights and religious liberty protections and impeding the ability of state and local governments to enforce their own laws. We urge the candidates to recognize that past experience with government and religiously affiliated organizations working as partners has demonstrated well that the necessary constitutional and anti-discrimination safeguards do not interfere with these organizations’ ability to provide excellent service to our country’s most needy citizens. It is entirely possible to encourage charitable works and provide services to communities in need without rolling back religious liberty and civil rights protections — indeed, this state of affairs used to be the norm. There is no reason for needy communities to be faced with the stark choice between services they desperately need and the constitutional and civil rights protections to which they are entitled.

While Sens. McCain and Obama have begun to speak about plans for their potential administration, we are watching what they say and what they do. We plan to critique their views as they are made specific in their platforms before the election. The BJC will continue to look for government to do right, but do it the right way — ensuring safeguards that protect religious liberty and the integrity of religious institutions.