Encounters like this reflect the long, honorable tradition of churches helping the downtrodden through both physical and psychological crises. From the perspective of most churches, the provision of financial and spiritual sustenance is essential to accomplishing their religious missions, and they back up this judgment with hard work, sincere commitment, and a great deal of cash. Assisting the needy is expensive, and in this country churches historically have financed their charitable aid projects with voluntary contributions from members of the church. The focus of these projects typically has been the church’s own parishioners and unaffiliated individuals who voluntarily are drawn to the church’s religious message.
But suppose the government rather than the church provided the money that the church distributes to the needy. And suppose the unemployed single mother in the scenario described above does not belong to the church that gives the aid. And suppose that in the woman’s town or neighborhood the state has referred her to the church as the primary source of assistance. And suppose the religious message distributed along with the aid directly contradicts the woman’s own faith, and openly seeks to convince her to abandon her own church in favor of the church offering the aid.
These suppositions raise disturbing questions about the legitimacy of using public tax dollars to finance religious proselytizing, and these questions are being asked with increasing frequency as some religious groups push hard for the adoption of programs generally lumped together under “charitable choice.” United States Senator John Ashcroft of Missouri coined this expression, and he has attempted to attach charitable choice provisions to a wide range of federal social welfare bills during the last decade. These proposals would require the government to offer federal funds to overtly religious organizations that provide health and social welfare services. Under the charitable choice policies proposed by Senator Ashcroft, religious organizations would not have to avoid religious proselytizing while distributing the federally funded benefits, nor would the organizations have to change their structure in any way to diminish the strongly religious character of the groups participating in the federal program.
Senator Ashcroft has succeeded in adding charitable choice provisions to two pieces of federal legislation that already have been enacted into law. The Welfare Reform Act of 1996 and the Health and Human Services Reauthorization Act of 1998 each contain broad language directing the federal government (and the states that distribute the federal funds) to employ religious groups as well as secular groups to carry out the objectives of the federal program.
The language of the Welfare Reform Act provision is typical of charitable choice statutes. The purpose of the provision, according to the statute, is to “allow states to contract with religious organizations” to disburse welfare assistance “without impairing the religious character of such organizations.”1 The provision generally prohibits both state and federal governments from refusing to use religious organizations to distribute aid and guarantees the independence of religious organizations that want to participate in government aid programs.
Certain types of government control over these organizations are specifically prohibited. The government is prohibited from regulating the internal governance of the organizations participating in public aid programs, and is also prohibited from interfering with the organizations’ religious expression or their use of religious symbols or scripture. Although the federal money cannot be used to pay for the religious aspects of church operations, the atmosphere in which the federal money is distributed can be so permeated with religious overtones that beneficiaries could easily perceive that the religion message is part of the federal program.
These two charitable choice statutes may be only the beginning. At least 10 other bills with charitable choice provisions are currently pending before Congress. Some of these bills go beyond the language of the Welfare Reform Act and would create even stronger connections between the religious objectives of church groups and government aid programs. One example of the stronger charitable choice language appeared in an early version of the American Community Renewal Act, which would provide government financial assistance to economically depressed communities. Under this provision (which was dropped from subsequent versions of the bill) church groups distributing federal aid could require substance abuse beneficiaries to “actively participate in religious practice, worship and instruction and to follow the rules of behavior that are religious in content or origin.” Similar language can be found in a bill introduced by Senator Spencer Abraham of Michigan addressing federally financed drug treatment programs. Meanwhile Senator Ashcroft has proposed the Charitable Choice Expansion Act, which would apply charitable choice rules to every current social service program that involves the expenditure of federal funds.
Most members of the general public do not realize how significantly these charitable choice proposals would change current law. The sponsors of this legislation have contributed to the public ignorance of the implications of charitable choice by phrasing the provisions in the benign terms of prohibiting discrimination against religious organizations. The proposals’ sponsors seek to benefit from the widespread public familiarity and support for the social service work of religiously affiliated organizations such as Catholic Charities USA and Lutheran Services in America, both of which receive government funding. But these organizations are very different from many of the organizations that would benefit from the new charitable choice proposals.
Traditionally, government aid has gone only to those institutions (such as Catholic Charities) that carefully divorce their secular assistance programs from the religious mission of the church with which they are affiliated. This separation has been dictated by the Supreme Court’s longstanding interpretation of the establishment clause of the First Amendment to the Constitution. For many years the Supreme Court has prohibited the government from directly funding what the Court calls “pervasively sectarian” institutions. The Court has held that “even though earmarked for secular purposes, when it flows to an institution in which religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission, state aid has the impermissible primary effect of advancing religion.”2 Thus, the Court has declared unconstitutional any government aid to pervasively sectarian institutions because such institutions cannot separate their secular activities from their religious missions.
Last June the Supreme Court addressed this issue in Mitchell v. Helms, a case involving a government program providing computers to private schools, including religious schools.3 Justice Thomas argued forcefully that the Court should abandon the restrictions on aid to “pervasively sectarian institutions” and allow such institutions to receive public money even if they divert that money to religious purposes. A majority of the Court rejected Justice Thomas’s proposal. As a member of the Court’s majority, Justice O’Connor argued against Justice Thomas’s attempt to rewrite several decades of constitutional law, and noted that the constitutionality of state aid to religious institutions continues to depend on those institutions being able to segregate religious activities from secular activities so that no state aid furthers the religious part of the enterprise.4 If a religious institution cannot segregate its religious from its secular activities, then government aid to that institution is therefore unconstitutional.
Justice O’Connor’s conclusion in Helms is consistent with the Supreme Court’s 1988 decision in Bowen v. Kendrick, which upheld a provision of the federal Adolescent Family Life Act allowing religiously affiliated institutions to participate in programs funded by the Act.5 In Bowen the Court emphasized that it was not unconstitutional for religiously affiliated institutions to participate in the program, because the Court assumed that religiously affiliated groups would carry out their functions under the statute “in a lawful, secular manner.”6 The Court also noted, however, that it would be unconstitutional for any recipient group to use government funds for religious activities.
Against the background of these cases it is difficult to see how charitable choice statutes can withstand constitutional scrutiny. In many respects the thrust of charitable choice seems to be directly contrary to the Supreme Court’s insistence that publicly funded secular programs must be kept distinct from private religious activities. Charitable choice statutes allow church groups receiving federal funds to remain structurally independent of government regulation, and allow them to practice their faith without restrictions even as they implement a federal welfare program. Thus, charitable choice statutes seem to permit exactly what the Supreme Court has prohibited—the use of government money to finance religious activities.
Charitable choice infringes on religious liberty in several different ways, which helps to explain the reason the Court has traditionally viewed similar programs very skeptically. First of all, charitable choice infringes on the right of taxpayers not to fund the religious activities of churches to which they do not belong. The perceived interest of each citizen in being free from mandatory religious assessments was probably the single most important motivation for the adoption of the religion clauses of the First Amendment. At the time the Constitution was framed, several states had controversial taxes to support churches. Indeed, the immediate precursor of the First Amendment was the Virginia Bill for Religious Freedom, which was drafted by Thomas Jefferson in response to a proposal by Governor Patrick Henry to impose a tax on Virginia citizens for the support of religion. In a famous treatise supporting the adoption of Jefferson’s Bill, James Madison commented that the government should not be permitted to force a citizen to contribute “even three pence” for the support of religion.
To Madison and Jefferson, the use of tax money to support religion was a quintessential form of religious coercion, and they believed that religious coercion by government violated the most basic precepts of religious liberty. The coercion of taxpayers by charitable choice legislation is problematic enough, but charitable choice also offers the possibility of an even more direct form of religious coercion. Charitable choice potentially subjects beneficiaries of state social service programs to religious proselytizing as a condition of receiving the government benefits to which they are entitled. Charitable choice legislation carefully preserves religious organizations’ right to engage in sectarian practices while participating in a government program, but does much less to protect the religious freedom of beneficiaries who have to deal with those organizations.
Charitable choice legislation does not prohibit religious organizations participating in government aid programs from engaging in overt religious activities while carrying out their public duties under the programs. Indeed, charitable choice statutes prohibit the government from limiting the religious expression of sectarian organizations distributing federal money and also prohibits the government from forcing such organizations to remove religious symbols or iconography from facilities used to distribute the federal aid. Thus, charitable choice legislation sets up a system in which a public benefits program will often be carried out in a context that is permeated with religious symbols and specifically designed to advance the religious objectives of one particular faith.
In many cases beneficiaries of federal programs such as the Welfare Reform Act will be subjected to subtle (and occasionally not so subtle) religious overtures while simply attempting to obtain benefits to which they are entitled under federal law. In contrast to the explicit protections offered to religious organizations participating in the program, charitable choice statutes only imperfectly protect beneficiaries who may not desire to join the religious activities of the religious group distributing the federal aid. Charitable choice statutes do prohibit religious organizations from discriminating against beneficiaries from other faiths (although the religious organization may refuse to hire anyone but members of the organization’s own faith to carry out the organization’s duties under the federal program). But the real concern with charitable choice is not that religious organizations will discriminate against members of other faiths, but rather that religious organizations will use the government programs as an opportunity to lure members of other faiths to their own denomination. In any event, it is not difficult to imagine the discomfort of beneficiaries who will be forced to run a sort of religious gamut to obtain government aid.
Charitable choice statutes deal with this problem by requiring states to offer alternative providers of aid for beneficiaries who object to the religious character of an organization to which the beneficiary is initially assigned. But the charitable choice statutes do not require states to inform individual beneficiaries that they are entitled to request alternative, secular providers of aid, so the beneficiaries must learn of this right on their own and take the initiative to object to the religious provider. Charitable choice statutes also do not require that alternative providers be convenient to the beneficiary. The alternative provider may even be in another town from the beneficiary’s home. Even in the best circumstances, requesting an alternative provider will result in a delay in the provision of aid. Although the states that coordinate federal aid programs are required to provide alternative providers “within a reasonable period of time” after a beneficiary objects to the initial assignment, this is an imprecise standard that will inevitably disadvantage beneficiaries simply because they do not want to be subjected to a particular religious environment in order to collect federal benefits.
Evidence that these problems regularly arise may finally force the courts to confront for the first time the constitutionality of charitable choice. In late July 2000 the American Jewish Congress and the Texas Civil Rights Project filed the first major lawsuit in the country challenging the constitutionality of a Welfare Reform Act charitable choice grant. The lawsuit challenges a state of Texas welfare-to-work grant to an organization called the Jobs Partnership of Washington County. According to the lawsuit, the Jobs Partnership is a consortium of evangelical organizations and local businesses in Brenham, Texas. According to the Partnership, it is dedicated to helping participants “to find employment through a relationship with Jesus Christ.”
The lawsuit cites multiple ways in which religious proselytizing has infused the government-funded Job Partnership program. Among other things, the group operated a 12-week course for job seekers, which included a Monday night Bible study group and a Thursday session applying the Bible lessons to job skills training. According to a 1999 evaluation of the program by the Texas Department of Human Services (which approved the grant and is a defendant in the lawsuit), the materials used for the Job Partnership courses were explicitly Christian and made biblical instruction a centerpiece of the program. The lesson for week five of the 12-week course included the statement “to work is to serve God and man,” and the lesson for week six asserted that “all authority comes from God.” Most disturbing of all, the Department of Human Services evaluation revealed that one third of the participants surveyed in the program reported “pressure” from the program “to join a church or change your beliefs.” The Reverend George Nelson, president of the Partnership’s board of directors, seemed to concede the accuracy of the lawsuit’s characterizations in an interview with the Dallas Morning News: “We teach them about what the Word of God says about life itself. Work is not your enemy; your boss is not your enemy. Things of that nature—taking away the myths embedded in people about what God says about work. That’s basically what it is, using the Bible, of course.”7
The Texas lawsuit may finally give the courts an opportunity to set limits on what charitable choice statutes may allow church groups to do with government funds they have accepted for social service work. Ironically, a ruling that imposes strict restrictions on church-run social services will simply create another kind of dilemma for churches considering succumbing to the strong appeal of federal money. To comply with constitutional restrictions on accepting government money, the churches may have to modify the way they provide the services so radically that they fundamentally alter the nature of their own ministries. The fear expressed so far has been that charitable choice will infuse government services with religion, but the equally grave threat is that charitable choice will create financial incentives to secularize religion. In the end both government and religious institutions will suffer from the experience.
In the larger scheme of things, charitable choice is just another skirmish in the longstanding battle over the proper relationship between church and state. The best outcome of this skirmish would be a stern reminder of the continuing importance of the separation of church and state.
In the social services area, as in other areas where church/state disputes arise, the separation of church and state continues to serve three functions essential to the preservation of religious liberty: It ensures that the government will not be controlled by religious groups; it ensures that churches will not be controlled by the government; and it ensures that individuals will remain free to decide for themselves the direction of their spiritual quests.
The real question posed by charitable choice is whether the abstract value of religious liberty can overcome the concrete allure of easy cash. For many churches it is easy to quantify the financial enticements of charitable choice, but the potential costs to religious liberty are immeasurable.
Footnotes
1 42 U.S.C. §604a (b) (1996).
2 Meek v. Pittenger, 421 U.S. 349, 365-366 (1975).
3 Mitchell v. Helms, 120 S.Ct. 2530 (2000).
4 See Mitchell, 120 S. Ct. 2556 (O’Connor, J., concurring in the judgment).
5 Bowen v. Kendrick, 487 U.S. 589 (1988).
6 Ibid., p. 612.
7 Christopher Lee and Jeffrey Weiss, “‘Charitable Choice’ Gets Challenge,” Dallas Morning News, July 25, 2000, p. 23A.
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