CESNUR - center for studies on new religions

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The 2002 CESNUR International Conference

Minority Religions, Social Change, and Freedom of Conscience

Salt Lake City and Provo (Utah), June 20-23, 2002


Derek H. Davis (J. M. Dawson Institute for Church-State Studies)

Nearly three months after the initial winds of the election controversy began to blow and nine days after his inauguration as the forty-third president of the United States, President George W. Bush announced the creation of the White House Office of Faith-Based and Community Initiatives.  This office, created by executive order and placed under the directorship of University of Pennsylvania political science professor John Dilulio, Jr., a professed Catholic and new Democrat, will work in conjunction with another new office, the Corporation for National Service, headed by former Jewish mayor of Indianapolis, Stephen Goldsmith, to coordinate partnerships between five departments of the federal government and religiously-based social service organizations.  Departments involved include those of Justice, Health and Human Services, Housing and Urban Development, Labor, and Education. Such collaboration between the government and private charities will ostensibly level the playing field between government and faith-based charities and allow those charities to conduct their mission without stooping to a never-ending list of government regulations.

When he announced the creation of the new office, Bush pledged his support of a policy of nondiscrimination against any religion and referred to this collaboration initiative as one of the most important his administration will implement.  "We will encourage faith-based and community programs without changing their mission.  We will help all in their work to change hearts while keeping a commitment to pluralism." [1]   Bush rightfully recognizes the limitations of government efforts to solve social ills; no secular agency that simply throws money at a problem can cure an illness that is the result of more serious internal problems than lack of resources. And exactly how some faith-based organizations will spend government resources is a subject of much controversy.  Some churches and religious institutions that receive this money will undoubtedly zero in not on the outward needs of individuals that come to them for help, but on the inward, spiritual needs those individuals may or may not recognize.  Herein lies a significant problem. Government then becomes an agent to transform the human soul.  But under the church-state separation principle imbedded in the American way of life, crafting the human soul is assigned to the spheres of religion and civil society, not government.  The American founding fathers, fully aware of centuries of abuse of persons whose religious sentiments did not line up with the officially proclaimed doctrines issued by powerful church-state partnerships, sought to assign the business of soulcraft primarily to the private sphere, free from the corrupting influence of government.  Alexander Hamilton properly delineated the roles of church and state when he wrote in Federalist 69 contrasting president and king: "The one has no particle of spiritual jurisdiction; the other is the supreme head and governor of the national church.  What answer shall we give to those who would persuade us that things so unlike resemble each other?  The same answer that ought to be given to those who tell us that a government, the whole power of which would be in the hands of the elective and periodical servants of the people, is an aristocracy, a monarchy, and a despotism." [2]

It was a prerogative of divine right monarchs to assume headship over their national church and to dictate what was and was not acceptable in terms of doctrine, practice and belief.  Such spiritual despotism was exactly the reason the Puritans sailed for New England to establish their own city on a hill where neither king nor prince nor royally appointed bishop could dictate what they could or could not do in their practice of religion.  The spirit of man is best left under the jurisdiction of communities of faith, not the civil government.  And, interestingly enough, it is this same acknowledgement that Bush makes by proposing that the government support faith-based charities without mandating strict religious conformity from every service provider.  Religion must be kept vital and free of government restraint, he says. 

So, does President Bush recognize the limitations of government in transforming society?  Well, perhaps to some extent.  He proposes to prohibit government from proselytizing by requiring that government money not be used for such purposes but rather only to administer the secular aspects of a program.  But there is no limitation, nor could there be constitutionally, on a faith group using its own funds to proselytize and to do it in a way that coordinates with the administration of the government-funded social program.    Thus under the Bush plan government remains, at least indirectly, and agent to transform the human soul.  It is the province of the religious community, not government, to provide services to the poor and needy in such a way that, through training in faith and practice, their innermost being is transformed spiritually.  

Confusing the roles of church and state leads to another problem with the Bush plan.  It is the proper place of the religious community to be a prophetic voice that speaks out against government encroachment upon freedom and justice.  If religious institutions are to receive government handouts, even simply to provide social services, how can they exercise their prophetic voices effectively without lessening some of the sting that often accompanies such criticism?  Government may expect a quid pro quo--we gave you money, now you lend us your moral support.  How can religious communities dodge the control that inevitably follows the receipt of government money?  How can religious institutions maintain their independence, preserve their right to proselytize and indoctrinate, and carry out their social functions in the manner their canons or rules mandate if they are dependent on government assistance from a government that is constitutionally prohibited from establishing any or all religions and prohibited from infringing upon the free exercise of religion?  Will strictly religiously-based social services become the norm, thereby alienating the poor and needy atheist who has nowhere to turn for social services?  There is a provision in current charitable choice law that a secular service provider has to be offered as an alternative to the religious services, but what if the secular service is too far away to make it reasonable that someone not wanting to go to the religious organization could travel there?  A few miles for one person may seem like 25 or 30 miles without an automobile or some sort of reliable and affordable transportation.  Would an atheist-based social program be considered religious so as to receive funds under the new program?  Or would it be considered a secular alternative?

A number of critics have emerged, and surprisingly, several are from the conservative evangelical camp originally expected to be the most enthusiastic about the Bush program.  While these conservative critics are important to the debate over this issue and will be addressed in follows, they are not the primary concern of this essay.  What is discussed here are the responses of the religious minorities, especially the so-called new religious movements, to Bush's plan--are they for it, against it, undecided?  And what are their reasons behind their positions?  Also, what are the constitutional issues that arise out of this new program that may aid or hinder participation by religious minorities?  Will it be viewed as an establishment of religion?  Will it be recognized to encroach upon the rights of religious minorities who have no social services provided by their own religious organizations?  What will be the ethical concerns raised when the government is asked to fund contradictory social services such as abortion counseling in one institution and adoption counseling in another?  Is it really the goal of some of these new religious movements to change the hearts of men and direct them to do good and succeed in the world?  Can there be order amidst this seeming chaos?

Faith-Based Initiatives--An Overview

Before proceeding to the heart of the argument, it is first necessary to address the history and overall goals of Bush's plan for government and faith-based organization collaboration.  Charitable choice, as a general concept of religious organizations receiving government funds, is not new.  Beginning in the 1996 Welfare Reform Act, charitable choice was instituted to enable welfare clients to "choose" between secular providers and religiously-based providers.  Charitable choice has since been written into several pieces of federal legislation, for example, the 1997 Welfare-to-Work program, the Community Services Block Grant program of 1998, and the Substance Abuse and Mental Health Services Administration's drug treatment programs in 2000, all without much controversy.   Several religious groups, of course, including Catholic Charities and Lutheran Social Services, have for many years received government funds to aid their secular social endeavors.  These organizations accept government funding on the condition that they not discriminate on the basis of religion in their hiring or proselytize their clients.  Such organizations operated effectively long before charitable choice sought to soften these rules, thereby making it possible for faith-based organizations to receive government contracts without forfeiting any of their religious character.  It is important to grasp what charitable choice really does for the American government and for religious social services.  It is also to understand why President Bush's plan has caught so much flack given the five-year history of charitable choice that has transpired without so much as a bat of an eye.  This shall be explored below.

The charitable choice provisions address religious social service providers' participation in the system of providing a variety of services to the needy.  Religious organizations are not required to dilute their faith in order to receive money, nor are the states able to discriminate against faith-based charities if they receive federal block grants. Several congressmen, including three top-ranking Republicans, and numerous other supporters including the Center for Public Justice, The National Association of Evangelicals, and the Union of Orthodox Jewish Congregations, hail this not as an accommodation of religion disallowed under the Establishment Clause but rather an attempt to amend too many long years of discrimination against religion in the area of social service provision. These organizations had previously expressed concern over secular institutions receiving funds while religious institutions had been left out in the cold simply because they were religious.  Said House Majority Whip Tom DeLay, "It's wrong for government to discriminate against organizations that can effectively provide services just because they are religious." [3]   They recognize religion's rightful and responsible role in serving the human as well as the spiritual needs of the community and see charitable choice as a chance to reinvigorate certain services that have withered and died on the vine due to lack of sufficient funds.  One has to ask, however, if some religious groups' hesitation to provide social services in the past was not due more to a theological position that disregarded the present world for the sake of the world to come than to a lack of sufficient funds.  It may also be quite possible that some of these religious groups see dollar signs and think of ways they can promote their own agendas without thinking about how they can best serve the community here and now in a manner that does not discriminate against social service recipients. Nevertheless, Bush's executive order of this year creating the White House Office of Faith-Based and Community Initiatives attempts to answer their concerns and leaves wide open the door to all religious groups, experienced and non-experienced, in providing social services: "The paramount goal is compassionate results, and private and charitable community groups, including religious ones, should have the fullest opportunity permitted by law to compete on a level playing field, so long as they achieve valid public purposes, such as curbing crime, conquering addiction, strengthening families and neighborhoods, and overcoming poverty." [4]   Theoretically at least, this could mean that all religions are funded equally and without consideration of what they believe.  The government would merely purchase the results offered by the religious-based social services, not aid religion nor inhibit it.  Stephen Goldsmith noted, "The government is trying to furnish shelter, it's trying to furnish food." But he added, "For me, I don't think that Wiccans would meet the standard of kind of being humane providers of domestic violence shelters." [5]

President Bush's plan for charitable choice has received severe criticism since it was announced, but why should this be the case?  The reasons are several, but two are most glaring.  One is that his proposals would urge dramatic and immediate change in funneling federal money to charitable organizations.  American democracy is such that the gradual phasing in of a new and innovative program is not nearly as painful as the institution of a new program in the shortest period of time possible. Several Republicans in Congress are even concerned that Bush is plunging too fast into introducing charitable choice in all parts of American aid to society's outcasts and would prefer not to introduce or support a lump sum bill but rather a series of bills over time establishing a charitable choice framework.  Another reason behind the backlash against Bush's program is its public prominence.  When charitable choice was originally passed in 1996, it was an obscure part of a much larger welfare bill, not an effort of a prominent public policy agency within the executive branch.  By highlighting his faith-based program and making a centerpiece of his administration, Bush has inadvertently opened the floodgates of public scrutiny and criticism.  When few knew about it, it was not a public concern, but the more there are who know, the more there are who will attempt to fight it. 

Of all the concerns, the possibility of equal funding is that which most upsets some and assuages the fears of others, and it is likely that the harshest criticism of faith-based government initiatives will stem from the methods by which funds are distributed to the various charities that are eligible. Bush himself has claimed that funds will go to those who provide the best services with the highest success rates.  All groups, regardless of religiosity, are equally eligible for federal money, but of course not all shall receive.  Thus it is an equal opportunity initiative, and not an equality-in-reality that Bush's proposal creates. If there were true equality of funding, then the large First Church downtown would receive exactly the same provisions as the tiny rural Hindu Temple.  That alone is not proportionally fair.  Another way would be to give to all charities funding proportionate to the size of their parent religious organizations.  This is problematic because membership totals for religious organizations are kept differently by different denominations and organizations, and seeing as how there is only a limited supply of money to go around (Bush has proposed spending $8 billion in the first year, none of it "new" money, but all of it coming at the expense of existing programs), when that is divided amongst all organizations proportionally, there is hardly any benefit to receiving federal funds at all.  Another problem would stem from the relative number of parties aided by the particular charity.  Suppose a Buddhist charity in a large urban China Town is the most prominent in the area, but the total Buddhist population is a mere fraction of the whole.  It would seem that the charity would be the victim of discrimination and would be disproportionately under-funded despite its size and services to the community.  But it would not seem right, either for the large Buddhist charity and the much smaller Methodist charity to receive equal funding.  In terms of gain, the Methodist charity would benefit more substantially than the Buddhist charity simply because of its smaller size.  It could afford to spend more money on each person it helps and thereby offer better services to a more select community. 

Detractors from charitable choice are from all parts of the spectrum.  One would expect to find such groups as the American Civil Liberties Union, the Americans United for the Separation of Church and State, the Baptist Joint Committee, and the Coalition Against Religious Discrimination to be against charitable choice on constitutional grounds.  Providing federal funds to religious charities, generally speaking,  is an impermissible act under the Supreme Court's traditional interpretation of the Establishment Clause of the First Amendment.  But their concern is also for the long-term health of religion in America after federal funding is made available.  One compelling argument they make is that once religious organizations receive federal funding dependence upon these funds will be the result and will eventually become a chronic illness of the system as it is in Europe and other parts of the world where church-state separation is less observed.  When the charities receive government funds, they are ecstatic and believe they are then capable of expanding their social outreaches.  The trouble with money is that it eventually is exhausted and more must be attained before further work can be conducted.  Since money was given once to a religious institution by a state agency, it is highly possible that this state agency will be generous enough to write another check when the original money is exhausted.  Once this happens, a cycle of receipt of government money by religious organizations, spending it, and then returning for more money becomes inevitable.  This cycle further erodes the private citizen's perceived responsibility to fund these same religious organizations because he sees the government standing in for him and using his tax dollars in the process.  Private funding eventually ceases or becomes negligible, and the religious organization is fully dependent upon the state money for survival.  When this has occurred, the religious institutions are effectively subordinated to the state, lose their autonomy, and are compromised in their religious mission.  The church becomes an arm of the state akin to any other bureaucratic agency, disrespected and reviled by the average citizen.

Another area of concern is that of discrimination in hiring and firing on the basis of religion.  Is it right for any organization, regardless of its proclaimed mission, if it receives federal funds, to discriminate against otherwise qualified applicants on the basis of religion or sexual orientation?  Senator Patrick Leahy (D-VT) has expressed concern that "religion [may be] used as a pretext to discriminate against homosexuals," and that "by allowing discrimination on the basis of religion, we may open the door to other forms of discrimination, including race." [6]   Such fears are not unfounded.  If a group such as the Ku Klux Klan could be considered a religious organization, then it would be eligible under Bush's plan for funds and would not have to compromise its tenets of racism and anti-Semitism.  Bush claims that such groups as this that preach hate would not receive funds, but then observers ask whether this is not in reality a discrimination against religion, even if it is offensive to the general public.  For some faith communities, it would violate their core orthodoxy to be forced to consider homosexuals or members of certain races for employment.  Would they not then cease to be a church if they violated these tenets simply to receive government funds?  Can the government require churches to abandon the very foundational beliefs that constitute them as churches?  

Another category of opponents to charitable choice surprisingly comes from the very ranks that would most likely spawn its proponents-evangelical Christians.  Jerry Falwell and Pat Robertson have both gone on record to voice opposition to Bush's expanded charitable choice plan because they fear money going to religious groups with whose theology they fundamentally disagree.  Such aberrant organizations would include the Church of Scientology, Wiccans, the Unification Church, the Hare Krishna, and the like.  Said Robertson:

I mean, the Moonies have been proscribed, if I can use that, for brainwashing techniques, sleep deprivation and all the rest of it that goes along with their usual proselytizing.  The Hare Krishnas much the same thing.  And it seems appalling to me that we're going to go for somebody like that, or the Church of Scientology, which was involved in an incredible campaign against the IRS.  I mean, they were accused of all sorts of underhanded tactics. [7]

Robertson would promote, however, a system that, instead of direct cash payments, offered tax credits to persons and corporations that donated money to religious groups.  He also advocates government registry of participating religious organizations that track the participating groups and ensure that they segregate the funds they receive specifically for social services and not for religious indoctrination or proselytization.  That appears neutral on the surface, but how would Robertson react to the government's telling him he could use certain funds only in a specific manner and could not conduct social services with religious proselytization as a key component? 

It is this group of opponents and its respective targets that are the subjects of this essay.  What will follow is a study of how these and other new religious movements and religious minorities perceive the charitable choice proposals of the Bush administration and how they plan to use or not use the money offered to them.  What are their reasons for accepting or rejecting these funds?  Is it primarily theological, moral or ethical, or is it humanitarian or a fear of public backlash?  The answers may prove surprising to some.

New Religious Movements and Charitable Choice

As previously noted, President Bush's plan theoretically opens the door for all religions offering social services to the community to participate equally in sharing federal funding.  White House officials have been sending mixed messages to the public when asked whether fringe religious groups would be eligible to apply for federal aid for their social services.  If America is to be truly the land of the free, where religion is a sacred right as much as a sacred rite, how far can and should the government go to ostensibly evenhandedly aid the multiplicity of religious sects in their quest to provide spiritual as well as social guidance to their constituencies and to the broader public?  President Bush has several times emphasized that he is only concerned with the results the programs produce.  Goldsmith seems to believe there are limitations.  Dilulio appears to advocate a performance model that may end up channeling money to groups that people do not like.

Are new religious movements clamoring to receive government recognition and aid, or are they content to remain where they are in the overall spectrum of religious diversity?  By all indications, the community of new religious movements is as divided on the issue as the general public.  Some, such as the Unification Church, are eager to feed at the government trough.  Others, like the Church of Jesus Christ of Latter-Day Saints, are issuing a staunch NO to government funds.  The following shall address some of the major pros and cons as seen through the eyes of these new religious movements. It is not at all intended to be a rating or thorough examination of the theologies of each of these movements, nor can it be a complete examination of new religious movements and their opinions on the matter from every angle due to the very difficulty of defining a "new religious movement." 

It is good to begin with the largest proponent of Bush's faith-based initiatives from the new religious movement spectrum--the Unification Church run by the Rev. Sun Myung Moon. Moon's official church was disbanded several years ago and replaced by the Family Federation for World Peace and Unification to lessen its unpalatable image in the eyes of conservative Christians.  Few if any conservative Christians would openly and willingly channel funds to such a group that, among other controversial theological doctrines, hails its leader and his wife as the "True Parents," or the second messiah sent to complete the failed mission of Jesus Christ.  Some critics have charged Moon with heresy or outright fraud.  Nevertheless, several such religious conservatives as Jerry Falwell and top officials in Pat Robertson's Christian Coalition have joined Moon-sponsored efforts to promote family values and to create Christian unity against a hostile secular front.  Moon appeals to the Christian Right often through the use of cash donations to certain organizations.  Falwell's Christian Heritage Foundation, for example, received $3.5 million from a Moon group to offset some of the debt incurred by Liberty University.  At another time, a Moon group gave gold wristwatches worth several thousands apiece to ministers who attended "We Will Stand" events that were part of a 50-state tour to promote family values and Bush's faith-based initiatives program. 

Moon has also enlisted the support of several members of the African-American clergy as he has emphasized the renewal of the urban communities and the need for racial unity.  The Rev. Donald Robinson of Washington, D.C. Mayor Anthony William's office stated, "I don't see a conflict.  I just see this as an opportunity for the city to align itself with like-minded people.  We want the renewal and restoration of families, the renewal and revival of community.  We want a sense of racial harmony." [8] If that is what they want, what is wrong with letting them have it?  Moon has interests that run deeper than the family values, sexual abstinence, and Christian unity he appears to espouse. 

By promoting Bush's plan for faith-based initiatives, Moon hopes to ingratiate himself to the leaders of the Republican Party.  Moon could then easily win government funds for his teenage abstinence program.  But that is not the whole of it by any means.  Moon's theology teaches the unification of all religions under a Moon-headed theocratic state.  It seems preposterous to most Americans to think that these naive goals could ever be realized, but that is not the concern of those who advocate separation of church and state.  Why should the government and its supporting taxpayers channel money to an organization that is bent on taking over the world?  It is a religious organization without a doubt.  It has a theology, a charismatic leader, and organized structures.  Under Bush's plan, it would only have to produce results with its social services to receive funds and would not have to alter its fundamental theology or its efforts at proselytizing.  But is it morally acceptable for a government to fund an organization that advocates its demise?  That would be the equivalent of the government shooting itself in the foot.  Many patriotic Americans would not want this sort of organization to use their tax dollars for pernicious ends.  The doctrine of equality of all religions, given the plurality of sects and denominations in America, therefore demands that none receive government funds for any work that could remotely be connected to winning converts to their cause.

A far less radical take on charitable choice is that of the Sikhs.  Concerns from the Sikh community include the possibility of government funds alienating religious minorities from mainstream acceptance since this could have a disproportionate impact upon Sikhism in the United States.  For this reason, dialogue has been encouraged, but the community has been reluctant to make a commitment.  According to the executive director of the Sikh Meidawatch and Resource Task Force (SMART), a Sikh advocacy organization, "We are not saying yes or no to this proposal by the Bush Administration, but we would like to hear more about how government funds could help social service programs in this country and we would like to participate in a dialogue that allows public funds to go towards non-proselytizing religious organizations." [9]   Non-proselytizing provisions seem to be the key to Sikh acceptance of faith-based initiatives. But how can a faith-based charity that is truly faith-based be anything but an effort to proselytize those that come to it for help?  If the charitable services are divorced from the parent religious organization, then can that charity be said to be faith-based at all?  Would it not then be simply another secular organization, only having a religious namesake instead of one from the government?  This seems to be the concern of several who oppose the Bush initiative.  Religion will have to be watered down in order to meet government funding standards.  And with that, all parties lose out.

Other new religious movements have not been as sympathetic to the Bush program.  Several such detractors come from the Neo-Pagan, Wicca, and earth religions traditions.  In February 2001, a coalition of representatives from these diverse traditions sent a letter to Bush addressing their concerns about the Office of Faith-Based and Community Initiatives.  Their concerns were twofold--fear of discrimination and fear of inequality.  These fears require a bit of explanation.

According to the letter, for the government to fund faith-based organizations while at the same time withholding funding from secular alternatives is contrary to the principle of separation of church and state. (Remember, Bush has not allocated any new money for the faith-based initiatives he is proposing; all money will simply be redirected to faith-based charities rather than secular ones in one massive campaign of wealth redistribution).  Federal funding of faith-based initiatives may inevitably lead to supplementing or fully paying the salaries of those "who may support and spread intolerance or violence based on religious, racial or ethnic supremacist ideals.  They would be able to discriminate in hiring and firing persons with views not in sympathy with their own." [10]    For them, it is not the government's place to promote or support individuals whose ideologies lend themselves to discrimination and exclusion.  One difficulty with that, however, is that the definition of discriminatory and exclusionary is not as agreed upon as one would imagine it to be.  Some, if not all, religions are discriminatory or exclusionary by their very nature.  A religion that teaches one doctrine obviously discriminates against other doctrines that do not conform.  And it will inevitably exclude someone from its rites and sacraments if that individual is not yet initiated into its fellowship.  The definition of religion itself, therefore, would preclude faith-based organizations from receiving government funds.  That may be what the earth/nature religions are driving at when they emphasize their concern that secular organizations will be forced to shut down when money begins flowing to faith-based groups. 

Their concern with inequality is also high atop the list of problems with the faith-based initiatives.  They assert that already some government officials have made derogatory and discriminatory comments about Wicca and other pagan religions.  These officials have suggested that Wicca may be an inferior or substandard religion when put alongside more conventional religions.  Of course, this "inferiority" would preclude them from receiving government funds.  Because of their qualification for IRS tax exemption, state incorporation, and their recognition in the U.S. Army Handbook for Chaplains, Wiccans believe they deserve the respect of everyone else in the government as well. And in all due respect to the government officials' prerogative to decide who shall and shall not receive federal funding, the Wiccans have a valid argument.  It is not likely that the IRS or the Army will back away from their stances, so why not press for further government recognition if the means are available?  The next to last paragraph of the letter sums up the Wiccans and all neo-Pagan organizations' desires: "This country and its resources are for everyone regardless of race, religion, sex or age. We ask that our tax dollars be given to initiatives, programs and organizations that do not discriminate." [11]  

It would seem the Wiccans have a legitimate claim against government officials in charge of the faith-based initiatives.  When asked at a Congressional hearing in April 2001 whether Wiccans would be eligible for federal funding under Bush's plan, John DiIulio responded that he could not understand why anyone in Congress would focus on Wiccans as a point of concern.  Said DiIulio: "It just baffled me." [12]   DiIulio sidestepped the question and never clearly stated whether the Wiccan organizations would qualify for funding or not. 

Some groups have been the targets of religious fundamentalists such as Jerry Falwell and Pat Robertson.  Inevitably, the Church of Scientology is dragged into the debate as a religion that many fundamentalists are against providing funds for due to its unorthodox beliefs and practices.  But surprisingly, not all of the animosity toward Scientology comes from the far right.  In a survey conducted in the early months of the Bush administration, only 26 percent of the general public supported giving money to the Church of Scientology if it wanted to participate in the federal programs. [13]   Scientologists themselves have been somewhat vague about whether they are willing and wanting to receive federal funds.  To illustrate, it is good to cite a lengthy passage from the Vice President of the Church of Scientology International, Janet Weiland:

Government funding of social betterment activities is nothing new.  Religious charities, such as Catholic Charities, Lutheran Services of America and the YMCA collect billions of dollars in federal money for their charitable programs.  The organizations that sponsor these charitable activities happen to be affiliated with major religious movements.  Up to now, this has not been controversial.  When the programs are chosen based on the merits and effective results, then there are no reasons for complaint.

We support very effective drug rehabilitation and literacy programs that have always enjoyed excellent relations with the communities they serve, and they are open to people of all religions.  These programs have freed more than 250,000 people from the ravages of drug addiction and have helped thousands more learn to read.

The religious leaders of this country should not be climbing over the backs of their brethren in a mad scramble for government coins.  Clergy of all faiths need to work together to solve the problems of escalating drug use, crime and illiteracy and the crashing moral values in this country.  That is our traditional role in the community as religious institutions and it is a role we are uniquely designed to fulfill. [14]

On the one hand, they seem to be willing to accept government funds; on the other, they seem to say "no thank you" to the president's proposal.  A February 20 New York Times article cited officials of the Church of Scientology as hoping to benefit from Bush's funding proposals, and already, Church of Scientology's drug rehabilitation program, Narconon, has in some instances received government funds for its services, even without the Bush program in place. [15] These programs, however, are devoid of religiosity and operate in much the same manner as Catholic Charities and Lutheran Social Services, divorced from the parent religious organization in all but name. The last lines of Weiland's statement above indicate the church's position on charitable choice that will fund religious charities without regard to their degree of religiosity: "Clergy of all faiths need to work together to solve the problems of escalating drug use, crime and illiteracy and the crashing moral values in this country.  That is our traditional role in the community as religious institutions and it is a role that we are uniquely designed to fulfill."  In other words, leave the religious social work and missions to the religious organizations, supported by their parishioners' generosity, not the government's handouts.  Government-funded religious social services is simply secular bureaucracy in religious garb.  It cannot let the religious community operate independently; and only in its independence is that community effective in transforming society.  Furthermore, offering funds to seemingly desperate religious charities can only create animosity in an age when cooperation among religious leaders is needed more than ever.  Many major wars in the history of the West were the results of religious competition.  The beauty of America is its diversity and the harmony such diversity fosters.  In the words of James Madison,  "Whilst all authority in [the United States] will be derived from and dependent on the society, the society itself will be broken into so many parts, interests and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from the interested combinations of the majority." [16]   To keep the peace, government cannot offer to fund some religions and potentially discriminate against others.  The Church of Scientology's answer to Bush's plan is apparently NO. 

Another perennial target of religious critics is the Nation of Islam, the leader of which is the notorious Louis Farrakhan.  This controversial organization has in the past received government funding, including money to fund Nation of Islam security guards at public housing projects in several major U.S. cities.  The program was eventually terminated after two Republican congressional figures began making inquiries.  However, the security guard programs had served to reduce crime and drug deals in their projects despite its effort to proselytize and distribute copies of its newspaper, Final Call, many critics charge to be laden with anti-Semitism and racism.  While Bush had earlier publicly stated that the Nation of Islam would be ineligible for funding because it preached hate, this security guard program is an example of a successful faith-based program.  If, as DiIulio maintains, the federal money will go to those faith-based efforts that have the highest rates of success, then the Nation of Islam, at least in this instance, would undoubtedly qualify.  However, despite its past cooperation with the federal government, Louis Farrakhan stated in February that he is no longer interested in receiving government money.  "Bush is not foolish.  He wants to win you, preacher." [17]   According to Farrakhan, Bush's entire plan is an effort to coddle the nation's black clergy and to win favor from them in return--just another way to keep the black man enslaved to the whims of the white majority.

Another group, the Mormons, is more widely accepted in the American mainstream and is well known for its pro-family, pro-life agendas.  Surprisingly, the Church of Jesus Christ of Latter-Day Saints has rejected the Bush plan for faith-based charities.  But this rejection does not stem from any particular ideology.  Rather, the church has the resources to sustain itself and would rather not be tied down by government regulations.  "We're neutral.  That's not saying we think it's wrong for every organization, but we just don't need it," spokesman Dale Bills said. [18]   The LDS has from the beginning prided itself on self-sufficiency.  And in its social services, the church requires that all its recipients repay the charity in some way as they become self-reliant.  By taking government money, the church could not insist upon this essential element to helping people become better citizens. 

Mormon, Wiccan, Scientology, and Nation of Islam's rejection of federal money is a breath of fresh air to many, if not most in the American public.  And undoubtedly, the efforts of Sun Myung Moon to gain credibility and funds is appalling to many.  According to a March poll, the American public by a 2-1 margin rejected the idea of government funds going to the Nation of Islam, to Scientology, and to the Hare Krishnas. [19]   If these controversial groups are not interested in receiving government money and the more generally accepted religious organizations are, what is the difficulty with Bush's proposals?  Would not the requirements of religious neutrality have been met?  The answers are not easily discerned, and the difficulties abound by the dozens. It is specifically the constitutional difficulties that are addressed in the following section.

Constitutional Difficulties with Faith-based Initiatives

Not the least problematic with President Bush's proposal for funding of faith-based initiatives stem from the myriad constitutional questions it inevitably invites for discussion.  Add to that the exceedingly complex corpus of Establishment and Free-Exercise Clause case law and the White House effort becomes even more controversial, especially as it is coming from the office of a president who won one of the most disputed elections on record and who continually promised throughout the campaign that he was one who would unite and not divide. 

What are the major constitutional issues that arise from Bush's faith-based initiatives?  Several have been alluded to already and it is fitting to address them here in more detail.   What comes to mind first as the most glaring constitutional problem with Bush's plan is that it is undoubtedly an attempt to scale the wall of separation between church and state if not completely demolish it.  "Congress shall make no law respecting an establishment of religion," says the First Amendment.  Bush's plan will certainly prompt a number of lawsuits, so it is imperative that we examine some of the constitutional issues.  There are three basic tests that the U.S. Supreme Court has devised for evaluating possible violations of the Establishment Clause.  These are generically known as the Lemon test, the endorsement test, and the coercion test.  We shall consider the constitutionality of the Bush plan in light of these three tests. 

The first question that must be asked about the Bush initiative under the three-prong Lemon test is whether it has a secular legislative purpose?  Another way to ask this question is to ask whether the government's sole intent is to advance religion?  These questions are themselves difficult to reconcile, and Supreme Court jurisprudence has proven that point.  When the Court asks the first question, there is near certainty that some secular legislative purpose can be found.  The Bush plan's secular purpose is to see to it that needy individuals and families receive the best services available and that those services offer the highest percentage of acceptable results possible for the lowest cost to the government treasury.  But, when the Court asks the secular purpose question in the second way, the lines become blurred.  Bush plans to give money to faith-based charities.  Inevitably, this will mean some advancement of religion.  Behind all the rhetoric of providing compassionate social services, is Bush's plan merely a scheme to make America a more religious nation?  That question requires the Court justices to become, as Antonin Scalia suggested in Lee v. Weisman, amateur psychologists. [20]   It is not possible for the Court to read Bush's or his team's minds and determine if their sole intent is to advance religion while wearing the cloak of providing secular services. Therefore, it is likely that the faith-based initiatives would stand up under the secular purpose prong. 

The second prong of the Lemon test, that the law, regulation or program shall not have as its primary or principal effect to advance or inhibit religion creates a greater hurdle over which legislators and presidents must jump. This prong can be taken in several ways as well.  When it was originally crafted, the words "principal or primary" carried the greatest weight.  In later years, the words "advance nor inhibit religion" became the dominant wording of this prong.  Whether Bush's plan would withstand constitutional scrutiny under either one of these readings is questionable.  In the first instance, the charitable choice efforts siphon government money away from secular institutions and give it to religious or quasi-religious organizations. No new money is allocated for Bush's plan.  That could conceivably lead to a principal or primary effect of advancing religion per se, for as religious institutions receive money with no restrictions upon the degree of religiosity with which they conduct their work, it is an inevitable consequence of this matter that religion is advanced.  Had the Bush program laid restrictions upon religious institutions receiving government money, it may not have appeared quite as obvious to have the principal or primary effect of advancing religion. 

Under more recent Court jurisprudence, it does not matter whether the effect is principal or primary; it simply matters whether the program advances or inhibits religion.  Bush's plan would certainly be unconstitutional under this approach.  How the government advances religion under this program has been addressed above.  But it may also be true that Bush's plan inhibits religion.  That is an unusual thing to say given the controversy over the separation of church and state that this program has brewed.  But nevertheless, it is true.  The charges of religious discrimination against the Bush administration are numerous.  What Bush's plan would theoretically allow is for the programs that provide the best results, regardless of religion, to receive government aid in conducting their work.  However, by what standard shall results be measured?  Will they be simply based upon the number of those who have successfully completed a welfare-to-work program, or will they be based upon the number of converts they have made?  After all, Bush himself has said that the government desires to work with those institutions that will "change hearts" as well as keep a commitment to pluralism.  Changing hearts necessarily implies something other than the outward aid the government can provide.  If, however, a religious institution does not work to change hearts, will it be counted worthy of government funds?  When asked about whether Wiccans would be eligible for these funds, government officials have been evasive in their replies.  The same has been true when asked about the Nation of Islam or the Church of Scientology or a host of other small and/or new religions.  The result of the Bush plan would likely be that the large mainstream religious institutions would receive all the funds while the small and, for some, bizarre religions would be left out cold.  Does that not inhibit these religious minorities from practicing their faith as fully as those who belong to a more generally accepted religion?  Bush's plan leaves no question - it fails the principal or primary effect test.

While its failing of the second prong of the Lemon test might in itself be sufficient to strike down the Bush plan as unconstitutional, it is wise here to consider also the plan under the third, or excessive entanglement, prong, especially in case the courts manage to construe the primary effect test in such a way that the initiative does pass constitutional muster.  How would the Bush plan create excessive entanglement?  The answers are several.  Where government funds go, government regulation cannot be too far behind.  While Bush insists that his program will not require religious institutions in any way to change their mission, he nevertheless acknowledges that government cannot rightfully subsidize the religious mission of these faith-based charities.  As one woman in attendance at one gathering of religious leaders in Georgia in February noted, "If a church was in the business of setting up a soup kitchen, the government money could be used for everything 'except the Bibles.'" [21]  
But the difficulty with endeavoring to divorce the religious mission of many faith-based charities from their secular mission is greater than one may imagine. 

As Ram Cnaan and Gaynor Yancey note in a chapter of the recent book, What's God Got To Do With the American Experiment, edited by John DiIulio and E.J. Dionne, liberal churches were prompted to social action by government cutbacks in spending, but conservative churches had long had their social service programs in action because of their ardent desire to be witnesses to their faith. [22] Would this mean that liberal churches would be more likely to receive government funds than conservative churches?  Would the conservative churches have to cut back on their proselytizing efforts to be eligible?  Bush would answer no to both questions.  But if government cannot fund religious activities, does the answer not inevitably become yes to both?  In order to ensure that government does not fund the religious activities of faith-based charities, government regulation and supervision would be required, especially in the more conservative organizations whose sole purpose of existence is not to produce hard and fast concrete results in relief of immediate human suffering but rather to produce a virtuous ideal and convert the sinful heart.  Such conservative programs are so saturated with religion that the government would have to constantly be on alert to a single dollar going to fund someone who may happen to mention to a recipient that Jesus loves him.  That sort of entanglement was ruled unconstitutional under Lemon, and was far from the ideal of the founding fathers, who recognized religion's special place in American society.  For both religion and government to survive and have vitality, they need to be independent of each other in performing their duties of service. 

It is no question that many religious groups are hurting for funds.  But how much do they have to hurt before they are willing to capitulate to government demands that they keep their social services free of religious permeation?  Without a guarantee that the government will not fund religious activities, the Bush proposal fails.  And because Bush does not desire any religious social service program receiving funds to be forced to alter its activities, it cannot withstand constitutional muster, for it creates excessive entanglement with religion.  If the religious institution does decide to capitulate, it then loses a greater or lesser degree of its religiosity.  Has not then charitable choice inhibited religion and again violated the principal or primary effect prong?  And over the course of time, as religious groups become more dependent upon government funds, religion assumes a subordinate role to the government and loses its vitality and luster, its ability to transform lives and do the very thing Bush desires to do by offering funding in the first place. 

Under the endorsement test, Bush's plan fares about as well as it does under Lemon.  The question under this test is what message does the Bush plan send to both religious and non-religious organizations and individuals?  Bush insists that equality is maintained in the equal opportunity of all religious organizations to compete for funds based upon merit.  But what will happen once the competition is over and the funds are disbursed?  Will it not send a message to the successful religious organizations that they are highly favored and to the unsuccessful that they are somehow inferior?  How shall merit be determined?  If by sheer volume, then there leaves little room for doubt that the large religious communities will receive all the money and leave the smaller ones to their own fate.  If by effectiveness of the charities, the smaller organizations may benefit over the larger because they are able to provide more direct, one-on-one services. 

Already DiIulio and other Bush White House officials have made comments such as the following:

"Predominantly exurban, white evangelical churches" are not like "urban African-American and Latino faith communities."  These latter groups "have benevolent traditions and histories that make them generally more dedicated to community-serving missions and generally more confident about engaging public and secular partners in achieving those missions without enervating their spiritual identities or religious characters." [23]

Will comments like this serve to endorse the African-American and Latino urban faith communities?  Will they send messages to the white, suburban communities that they are in some way inferior?  It seems from this statement that the government will be catering to the minority communities to the neglect of the majority communities. 

Under the Supreme Court's coercion test, Bush's plan may stand a better chance of success.  Government funding of faith-based initiatives does not in itself coerce members of society to participate in religious exercises.  However, when the government program begins to cause secular institutions to close so that faith-based services may stay afloat, that could appear as coercion.  A member of a minority religion may not have anywhere else to turn but to a majority religion's charity that actively proselytizes and conducts religious services as a prerequisite to receipt of funds.  This would then, in fact, give the appearance of that very state orthodoxy that Justice Anthony Kennedy warned against in his opinion in Lee v. Weisman. [24]   Government, though not directly, would be in fact coercing religious conformity, or at the very least, religious participation, whatever the variety.

Other constitutional questions stem from the Free Exercise Clause of the First Amendment.  "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof."  As already alluded to above, the free exercise rights of any number of citizens come into question when they are faced with the choice of going to a religiously affiliated social service provider nearby or the required secular alternative that may or may not be within traveling range for someone who is indigent or without transportation.  Is it right for the government to redirect funds away from secular providers and toward religious institutions despite the fact that many who had once relied upon secular services in their neighborhoods may no longer be able to receive those services without exerting a considerable amount of effort and time?  What happens to the Baptist in a small Utah city, the majority population of which is Mormon?  Before charitable choice, he could receive social services at a nearby secular agency within a few blocks of his home.  After charitable choice, he is forced to either go to the Mormon charities in his immediate area or else travel to the next town to a secular agency because the agency he first depended upon was closed due to wealth redistribution.  This scenario is unquestionably a violation of free exercise.  If the government says he can go to the Mormon charity, the government may not provide funds for the religious activities, but those activities are nevertheless conducted with church funds.  The Baptist in need is then forced to undergo religious instruction that is contradictory to his personal religious beliefs.  Surely the very government that is supposed to help him has violated his free exercise rights. 

Charitable Choice and the "Equal Treatment" Doctrine

The foregoing analysis has focused on those constitutional considerations that, based on traditional Supreme Court doctrine, are certain to receive close attention in any future review of the charitable choice provisions.  Such a review would probably (or at least should) result in a finding that significant parts of charitable choice violate the Establishment Clause.  Thus, a finding in support of charitable choice would require a less traditional analytical framework.  The leading candidate for such a framework is the Court's so-called "equal treatment" or "nondiscrimination" doctrine, an approach that increasingly has been utilized by the Court in cases dealing with religious speech, but which might easily be expanded to embrace a range of government funding issues.  It is probably safe to say that the original charitable choice provisions were carefully drafted to attempt to meet the requirements of the Court's equal treatment theory.  In fact, one of charitable choice's primary draftsmen, Carl Esbeck, a law professor from the University of Missouri-Columbia, presents his own analysis of the constitutionality of Charitable Choice in a 1997 article in the Emory Law Journal, and it is firmly grounded in the equal treatment theory. [25]   He calls it "neutrality theory," but it is one and the same as what we are here calling "equal treatment."

What is the equal treatment doctrine, and will it support the constitutionality of charitable choice?  Basically, the doctrine surfaced in a line of cases in which the Supreme Court seemed satisfied to equate religious speech with other forms of secular speech, so that it adjudicated the cases strictly pursuant to a free speech analysis.  This approach emphasized that religious speech is not in a privileged position vis-à-vis political, philosophical, or other forms of speech, leading the Court to justify its decisions on an "equal treatment" or "nondiscrimination" principle.  But we should consider equal treatment theory in considerably more detail than this. 

The Supreme Court's "equal treatment" approach in religious speech cases began with the 1981 case of Widmar v. Vincent. [26]  The Court determined that a state university could not refuse to allow Christian Bible study groups to use campus facilities when it extended to nonreligious groups the same privilege.  The university's discrimination against the study groups based upon the religious content of the speech impermissibly violated the students' right to free speech.

The Widmar case became the legal basis for the 1984 Equal Access Act which grants "equal access" to school facilities to students of religious and nonreligious clubs for their pre- or after-hours meetings.  Religious meetings are required to be student-initiated and student-led.  The constitutionality of the Act was upheld in 1990 in Westside v. Mergens. [27]   The Supreme Court appropriately held that requiring equal access among all student groups regardless of their religious nature is reasonable since there is little, if any, government advocacy of religion, and no realistic perception that government is endorsing religion when religious groups use the school facilities.  In her plurality opinion in Mergens, Justice Sandra Day O'Connor commented, "There is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect." [28]  As a supplement, not as a precursor, to its free speech analysis, the Court determined that the use of the public facilities by religious groups would not violate the Establishment Clause.

Other issues traditionally analyzed under the Establishment Clause have also begun to be decided primarily as free speech cases, following the Widmar and Mergens precedents.  For example, typically it was under the Establishment Clause that the Court examined the constitutionality of placing religious symbols (crèches, menorahs, crosses, Stars of David, etc.) on government property, holding that such symbols are permissible only if they are muted by secular symbols or objects so that they do not convey a message of governmental endorsement of religion. [29]   Recently, however, the Supreme Court (and following its lead, the lower courts also) has begun to consider religious symbols on public property primarily as forms of protected free speech rather than specifically religious speech, and therefore has allowed their display on government property on the theory that all forms of speech in public fora, including religious speech, should be protected.  For example, in June 1995, the Court in Capitol Square Review and Advisory Board v. Pinette [30] held that the Free Speech Clause required the city of Columbus, Ohio to allow the display of a Ku Klux Klan Latin cross in its Capitol Square along with a Christmas tree and a menorah.  The Court affirmed the appellate court's ruling that "speakers with a religious message are entitled no less access to public forums than that afforded speakers whose message is secular and otherwise nonreligious." [31]  The seven Supreme Court justices affirming the free speech analysis nevertheless disagreed over the extent to which the Establishment Clause could operate to limit the "equal treatment" of religious and nonreligious speech.  Justices Scalia, Thomas, and Kennedy and Chief Justice Rehnquist proposed a standard whereby the Establishment Clause could rarely be invoked; Justices O'Connor, Souter, and Breyer proposed that there should always be an Establishment Clause analysis to determine whether a governmental endorsement of religion has occurred; and the two dissenters, Justices Stevens and Ginsburg, proposed that a violation of the endorsement standard of the Establishment Clause necessarily always occurs when any religious symbol is placed on public property, even by private interests.  Notwithstanding this disagreement over the viability of an Establishment Clause analysis, the majority of the Court proposed elevating the Free Speech Clause to such an extent that it would nearly always "trump" Establishment Clause analysis - a clear reversal of the Court's prior approaches in which Establishment Clause concerns took precedence.

But none of these cases dealt with government funding of religion, as do the charitable choice provisions.  The first case considered by the Court under the equal treatment or nondiscrimination principle in which government funding of religion was at issue was Rosenberger v. University of Virginia (1995). [32]  There, the justices reviewed the University of Virginia's refusal to fund the printing of a student religious group's publication, Wide Awake.  In a 5-4 vote, the Court held that the religious character of a student publication was immaterial; because the University was funding other kinds of private student speech, it was also required to fund Wide Awake.  Four separate opinions were written in Rosenberger:  Justice Kennedy wrote for the five-person majority (which included Chief Justice Rehnquist and Justices O'Connor, Scalia, and Thomas); Justices O'Connor and Thomas each wrote concurring opinions; and Justice Souter wrote for the four dissenting justices (himself and Justices Stevens, Ginsburg, and Breyer).  The opinions reveal deep divisions within the Court regarding how to decide religion cases. 

Justice Kennedy's majority opinion, accepting the argument that the case falls within the Free Speech Clause rather than the religion clauses of the First Amendment, held that the University's refusal to fund the printing of student religious publications like Wide Awake discriminated against the group because of its viewpoint.  Under this analysis Wide Awake's religious speech is on par with all other types of speech.  In fact, in their brief to the Court, the petitioners equated the constitutional position of Wide Awake's Christian message to "a gay rights, racialist, or antiwar point of view."  Justice Thomas, in a concurring opinion, focused not on the content of the speech but on the constitutional position of the speakers.  Since the First Amendment requires neutrality between religion and nonreligion in the administration of government programs, "religious adherents" should be treated the same as all others in the public forum.  Justice O'Connor's concurring opinion emphasized that the political equity between religious and nonreligious speakers demanded by the Constitution requires that governmental entities not favor any political group over another.

For the majority writers, a religious viewpoint is regarded as the same as any other type of speech advocating a point of view, not as speech receiving special constitutional stature.  The majority never subjected Wide Awake's message and the University's activity in paying for its copying to an Establishment Clause test because of its determination to treat all types of speech equally.  Only Justice Souter's dissenting opinion considered Wide Awake's religious message as special, necessitating special review under the Establishment Clause.  He was concerned that the magazine went beyond mere words of "student news, information, opinion, entertainment, or academic communication." [33]  Rather, quoting from the magazine itself, the publication aimed to "challenge Christians to live, in word and deed, according to the faith they proclaim and . . . to consider what a personal relationship with Jesus Christ means." [34]  He warned that "the Court is ordering an instrumentality of the State to support religious evangelism with direct funding.  This is a flat violation of the Establishment Clause." [35]

The Court's insistence that religious speech is qualitatively no different from any other kind of speech is cause for concern.  The student Christian group won the funding of printing for its publication, but at the price of having its religious message reduced to the commonality of every other form of human speech.  By insisting on equal treatment for religious speech, the petitioners were willing to give up the special status that religion is otherwise granted under the Constitution.  The Court bought the petitioner's argument, which is a disturbing development indeed.  If protected religious speech is simply free speech, then why, we might ask, do we need the religion clauses of the First Amendment?  Those who drafted the Bill of Rights at the First Congress were, of course, concerned to protect the free exercise of religion.  They took special pains to do so by separating the Free Exercise Clause from the Free Speech Clause, which should indicate the differences they saw in "religion" and "speech."  They also took care to juxtapose the Free Exercise Clause with an Establishment Clause that would act as a restraint on religion to prevent its power from becoming too closely identified with state activity.  This was not done for other forms of protected speech.  In other words, the Founders believed religious speech to be different from mere speech, uniquely so, and they could scarcely have done more to make the point.

The Rosenberger decision denies the power of religion by approving state subsidization for the preaching of the gospel.  By wishing not to deny religion its place in a marketplace of ideas, the Court denies the special place held by religion in our constitutional framework.  Private exercise ofreligion must be protected, to be sure, but only when it is unaided by government funds.  The Founding Fathers, due to their appreciation of the coercive effects of religion when joined with political power, intended that the Establishment Clause act as a special restraint on religion.  If "preaching the word," the stated purpose of Wide Awake, is only speech, it is outside the restraints of the Establishment Clause.  But "preaching the word" is not mere speech; it is religion and must, therefore, suffer the inconvenience of full protection only when disassociated from the power of government. [36] Indeed, a feeble appreciation of the importance and value of the Establishment Clause lies at the heart of the "equal treatment" concept. 

If the charitable choice provisions are to withstand constitutional scrutiny, it will likely be on the basis of the Supreme Court's equal treatment theory.  The theory has many failings, not the least of which is its friendliness to government advancement of religion.  Americans seemingly have not learned the lesson that religion is much better off, in fact it thrives, without government money.   Government funding of religion is a wolf in sheep's clothing.  It promises security but delivers destruction.  Moreover, it promises equality, but we have seen that real equality is impossible to achieve.  Even among those minority religions that choose to pursue government funding of their social programs under the Bush initiative, the available money is likely to go to the largest, most visible, most well connected, most socially acceptable religious groups.  This is the inevitable consequence of politicized religion.


President's Bush's creation of the Office of Faith-based and Community Initiatives unnecessarily invokes a host of church-state issues of fundamental importance.  Congress could still steer clear of First Amendment problems if it limits the scope of potentially participating organizations to private organizations, including religiously affiliated organizations, that have an organizational charter or bylaws establishing their secular function. Houses of worship and other religious groups, including the array of religious minorities across America, could then participate in the new social service programs, performing their contractual responsibilities with the state in a secular setting and without proselytization.  This arrangement would be in keeping with Supreme Court precedent and would protect both church and state from encroachment by the other.

Many members of Congress seems convinced that meeting the needs of the nation's poor and needy can only be achieved by enlisting the aid of faith-based institutions.  But why does this also require an infusion of government money, with all of the attendant problems, both practical and constitutional?  If it is a lack of financial resources that hinders faith-based institutions from a full participation in social programs, Congress would do better to offer economic incentives (e.g., tax credits and multiple write-offs) to corporate America for donations that would enable faith-based institutions to administer needed social programs.  The possibilities here are endless, but the notion of corporations adopting and providing the financial means for charities, churches, synagogues, and other faith-based organizations to administer social programs, in effect creating a new strain of partnerships across America to solve social problems that government cannot and should not be expected to solve, is an attractive prospect.

But apart from these possibilities, and even in the new world created by charitable choice, houses of worship and other religious organizations can still exercise the same option that was open to them even before the charitable choice provisions became law: assist the poor and needy on their own terms, with their own financial resources, in an expressly religious environment, and with complete freedom to proselytize and teach their own religious beliefs.  America's tradition of religious liberty could never be more faithfully or effectively exercised.

Derek H. Davis (B.A., M.A., J.D., Baylor University; Ph.D., University of Texas at Dallas) is director of the J.M. Dawson Institute of Church-State Studies, Baylor University, and editor of the award-winning Journal of Church and State. He is the author of Original Intent: Chief Justice Rehnquist & the Course of American Church-State Relations (1991), Religion and the Continental Congress, 1774-1789: Contributions to Original Intent (2000), and editor or coeditor of twelve additional books, including the Legal Deskbook for Administrators of Independent Colleges and Universities and The Role of Religion in the Making of Public Policy.  He serves numerous organizations given to the protection of religious freedom in international contexts, and is a frequent speaker on church-state relations, religious freedom, human rights, and the role of religion in society. 

[1] The Baptist Standard, vol. 113, no. 6 (February 5, 2001): 1.

[2] Clinton Rossiter, ed.,  The Federalist Papers (New York: Penguin Books, 1961), 422-23.

[3] Church and State, vol. 54, no. 6 (June 2001):5.

[4] Executive Order: Establishment of White House Office of Faith-Based and Community Initiatives.  29 January 2001.  Available at: http://www.tgci.com/faithbased/articles/eo012901.htm

[5] Church and State vol. 54, no. 4 (April 2001): 5.

[6] The Report from the Capitol, Baptist Joint Committee, vol. 56, no. 12 (13 June 2001): 1.

[7] Church and State, vol. 54, no. 4 (April 2001):5.

[8] Quoted in Church and State, vol. 54, no. 6 (June 2001): 10. 

[9] SMART Press Release, 28 February 2001.  Available at: http://www.sikhmediawatch.org/news_events/pr20010228.htm

[10] Letter to George W. Bush, Dick Cheney, and Honored Government Officials, available at http://www.aren.org/lettersig.html

[11] Ibid.

[12] Laura Meckler, "Plan for Religious Groups Debated." AP Online, 6 May 2001.

[13] Ibid.

[14] Janet Weiland, "Scientology Responds to Faith-Based Accusations."  Available at: http://www.beliefnet.com/story/74/story_7439_1.html

[15] Church and State, vol. 54. no. 4 (April 2001): 5.

[16] Rossiter, "Federalist 51," James Madison, 324.

[17] Ibid., 6.

[18] Christy Karras, "Mormons Reject Bush Charity Plan," AP Online, 25 April 2001.

[19] Church and State, vol. 54. no. 4 (April 2001): 6.

[20] Idem. at 636.

[21] Church and State, vol. 54, no. 4 (April 2001): 8.

[22] Ram Cnaan and Gaynor I. Yancey, "Our Hidden Safety Net," in What's God Got To Do With the American Experiment? ed. E.J. Dionne, Jr. and John J. DiIulio, Jr. (Washington, DC: Brookings Institute Press, 2000), 153-59.

[23] Church and State, vol. 54, no. 4 (April 2001): 10.

[24] Lee v. Weisman, 505 U.S. 577 (1992).

[25] Carl E. Esbeck, "A Constitutional Case for Governmental Cooperation with Faith-Based Social Service Providers," Emory Law Journal 46 (1997): 1.  For a more extended argument for "equal treatment" theory in the provision of faith-based social services, see Stephen V. Monsma, When Sacred and Secular Mix:  Religious Nonprofit Organizations and Public Money (Lanham, Md.:  Rowman and Littlefield, 1996), and Stephen V. Monsma and J. Christopher Soper, eds., Equal Treatment of Religion in a Pluralistic Society (Grand Rapids, Mich.:  William B. Eerdmans, 1998).

[26] 450 U.S. 909 (1981).

[27] 496 U.S. 226 (1990).

[28] Ibid. at 250.

[29] See, for example, Lynch v. Donnelly, 465 U.S. 668 (1994), and County of Allegheny v. Pittsburgh A.C.L.U., 492 U.S. 573 (1989).

[30] 515 U.S. 753 (1995).

[31] 30 F.3d 675 (6th Cir. 1994) at 679.

[32] 515 U.S. 819 (1995).

[33] Ibid. at 2535.

[34] Ibid. at 2534.

[35] Ibid. at 2547.

[36] For a similar argument, forcefully made, see Winnifred Fallers Sullivan, "The Difference Religion Makes:  Reflections on Rosenberger," Christian Century, 13 March 1996, 292.

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