Putting policy before the law

By K. Hollyn Hollman

Church-State Intersection
January 22, 2003

Three days before President Bush signed far-reaching executive orders implementing controversial aspects of his so-called "faith-based initiative," I met with Jim Towey, head of the White House Office of Faith-Based and Community Initiatives. The meeting included nine other representatives of national civil rights and religious organizations that have been critical of "charitable choice." Despite our differences with the White House, we welcomed the chance to voice our concerns.

The meeting began with Mr. Towey asking what fault we found with the CARE Act, the Senate bill left lingering in the last Congress. Implicit in the question (and the invitation to meet) was the suggestion that the administration might pursue a less divisive approach in the future. The invitees responded respectfully, outlining our objections about the lack of accountability for grants funneled through intermediaries, the funding of employment discrimination, the potential coercion of beneficiaries and the regulation of religion.

On the positive side, Towey acknowledged that some of the areas of disagreement were unsettled under the law. But his use of misleading metaphors such as "unlevel playing field" reveals a lack of respect for basic church-state principles. The meeting ended with a cordial invitation to send him suggestions on how to approach troublesome issues. Towey gave us no indication that the White House would unveil sweeping executive orders and "guidance" on the initiative three days later — much less that he viewed the very groups he invited to meet with him as "extremists," as he told the press.

The new executive orders and accompanying guidance reveal a view of the First Amendment that is much less supportive of religious liberty than current Supreme Court jurisprudence. The Bush administration's message to religious organizations seems to be "take the money now and worry about the law later." Dismissing our concerns, they are putting policy and politics before the law.

According to the recently released guidance to faith-based organizations, the only restriction imposed by the Establishment Clause is that government money cannot be used directly for "inherently religious activities." The official White House guidance on this point is remarkably casual: "Don't be put off by the term 'inherently religious' — it's simply a phrase that has been used by the courts in church-state cases. Basically, it means you cannot use any part of a direct Federal grant to fund religious worship, instruction, or proselytization. Instead, organizations may use government money only to support the non-religious social services they provide."

Two George Washington University law professors, Ira Lupu and Bob Tuttle, have been closely monitoring developments in the "faith-based initiative." In their view, the executive orders "may exacerbate significant ambiguity that remains about the application of the Establishment Clause in this context." They note that the phrase "inherently religious" appears in only one majority opinion of the Supreme Court and only once in a case that involved public financing of social services.

While it is correct that government money cannot be used for religious worship, instruction, or proselytization, that description does not capture the full meaning of the Establishment Clause's prohibition of government-funded religion. "As a matter of judicial precedent or logic," report Lupu and Tuttle, "the concept of 'inherently religious' thus cannot sufficiently guide government agents or FBOs in their judgment about what the government may subsidize."

Even Attorney General John Ashcroft, the nation's top law enforcer, seems set on changing the law. Last week he spoke in favor of the faith-based initiative, claiming that "out of fear, ignorance and occasional bigotry, faith-based groups have been prohibited from competing for federal funding on a level playing field." Such comments ignore the millions of tax dollars that go to religious affiliates operating within current constitutional norms and demonstrate the top down push of the policy.