Victory in Senate should inspire vigilance on 'faith-based' agenda

Church-State Intersection
By K. Hollyn Hollman

April 2, 2003

While the ultimate outcome remains uncertain, the announcement by co-sponsors of the CARE Act that they are dropping the "equal treatment" provision of that bill marks a significant legislative victory. For months, the Baptist Joint Committee and other groups sought to remove that provision, apparently with little hope of success. But last week the tide suddenly turned in our favor.

The CARE Act contains much that is positive about the president's so-called "faith-based" agenda, such as charitable giving incentives and technical assistance for small nonprofits, which we support. However, the "equal treatment provision" raises concerns at odds with our basic commitments to protect religious liberty and to avoid government-funded employment discrimination. In the context of recent regulatory action by the administration, this provision became as indefensible as explicit "charitable choice" language the BJC has opposed since 1996.

In a meeting just a few weeks ago, Jim Towey, director of the White House faith-based office, showed no interest in abandoning any part of the CARE Act. Instead, he appeared singularly focused on codifying the president's recent executive orders. Like the bill's co-sponsors, Towey continued to refer to the CARE Act as "compromise" legislation that is silent on the most divisive issues, unlike the controversial House version of the measure that would explicitly expand "charitable choice" across a wide spectrum of federal funding programs. He argued that amendments to CARE could jeopardize the entire bill, including proposed funding of basic social services. He characterized those seeking amendments as holding the poor hostage. This inflexibility suggested that the White House and the lead co-sponsors were intent on legislation that opens the door to the direct funding of churches while ensuring that religious organizations that discriminate in hiring based upon religion could continue to do so even if they accept government funds.

It is difficult to pinpoint exactly what led to the remarkable reversal of course last week. It was likely a combination of factors.

First, we should credit the Bush administration for recognizing that their decision to pursue an ambitious agenda without approval from Capitol Hill was beginning to backfire. While the CARE Act was languishing in the last Congress, President Bush simply stepped up the administrative implementation of his initiative. He ordered sweeping review and revision of regulations to loosen constitutional safeguards and strip nondiscrimination provisions. As Congress became more aware of these changes, support for the White House's legislation dwindled, prompting a reassessment.

Second, the hard work of a handful of legislators in both chambers made a powerful impact. In the House, those who pushed for oversight hearings on the proposed changes to HUD rules exposed the lack of support for the administration's approach to civil rights. In the Senate, Sens. Durbin and Reed were unwilling to allow a vote on CARE without debate on important aspects of the bill. They insisted on an amendment strategy to add civil rights protections and prohibit proselytizing in programs that receive government funds.

Finally, a broad coalition of religious and civil rights groups played a crucial role in explaining the problems with "equal treatment." The BJC and other organizations participated in Senate staff briefings and lobbying efforts to describe why the CARE Act's "silence" on controversial issues was unacceptable.

It is appropriate to reflect on this legislative victory. Still, we must not overstate its importance. The Bush administration remains committed to implementing its agenda through administrative action, despite opposition from Congress and even the public at large. Federal courts or future presidents may yet undo what this administration has done. In the meantime, we should enjoy and continue to build on our progress in the Congress.