CHARITABLE CHOICE: A Needed Boost To "Armies Of Compassion" Or An Establishment Of Religion?

By SIMON STEEL

Thursday, Jul. 19, 2001

President Bush has called on Congress to pass the Charitable Choice Act, which goes to the Floor of the House this week. The legislation should be passed, Bush asserts, to end "discrimination against religion" and to enable government to "stand side by side with the soldiers in the armies of compassion to make sure that America's promise is rich and real for every citizen."

A contrary viewpoint has been voiced by organizations such as Americans United for Separation of Church and State. The group sees charitable choice, instead, as "an outrageous assault on religious liberty and civil rights." They claim it "advocates publicly funded employment discrimination, . . . threatens the religious liberties of those in need, . . . jeopardizes the freedom and independence of America's faith communities and undermines the rights of all taxpayers."

Who is right? To answer the question, it's necessary to look beyond rhetoric to the specifics of the legislation. In theory, allowing religious organizations to compete on a level playing field for government assistance when they provide secular services to the needy seems reasonable, especially if it can be used to harness sorely needed energy to assist the worst off in society. But the devil, as Senator Lieberman has said, is in the details. The latest version of the Charitable Choice Act raises several serious constitutional, civil rights, and practical issues.

The Bill's Effect

Many existing federal programs already provide funding to state and local government agencies, and to nongovernmental organizations (including religiously affiliated charities), so that they can assist as partners in providing social services. The new Charitable Choice Act would change the law regarding how federal, state, and local governments select which nongovernmental organizations will become partners, and thus receive federal funding.

The change would affect projects spanning a wide range of subject areas — from juvenile justice, to crime prevention, housing, workforce training, elder care, child care, community development, domestic violence, hunger relief, and some aspects of education. The federal budget items allocated to these projects run into the tens of billions of dollars.

The bill would impose a general obligation on all levels of government (federal, state, and local) to consider religious organizations "on the same basis as other nongovernmental organizations" for such funding, and not to discriminate against them "on the basis that the organization has a religious character."

What would be required of religious organizations receiving funding? They would not be allowed to use the federal funds for religious worship, instruction, or proselytization. Nor could they integrate religion into the federally funded services themselves. Nor could they turn away eligible beneficiaries of federal assistance based on their religion.

Such organizations would, however, be entitled to protect their "autonomy from . . . governments," including their "control over the definition, development, practice and expression of [their] religious beliefs." For example, they would not have to take down religious icons and scriptures in religious buildings where the social service was provided. If necessary, religious organizations could sue for an injunction to compel the government to respect these rights. They could also sue on the theory that, contrary to the Act, the government is preferring secular over religious organizations (or, presumably, although the bill does not say so expressly, preferring particular religions over others) when it chooses social service partners.

What if a person in need of assistance does not want to be served by a religious organization? He or she could demand that the government provide, within an (unspecified) reasonable period of time, an accessible alternative of no less value. This right, too, would be enforceable in an injunctive action against the funding agency. (Damages, and suits against the religious organization itself, would not be available).

Constitutional Issues: Funding and Neutrality

Does the bill pass Establishment Clause muster? The Act's neutrality principle — that religious organizations will receive aid only on the same basis as non-religious organizations — is a good start. But it is not conclusive.

Consider the Supreme Court's decision last year in Mitchell v. Helms. There, the Court upheld the government provision of secular materials and equipment on a neutral basis (per capita enrollment) to religious along with secular schools. However, neutrality was not the only factor important in Mitchell: The Court also ensured that such aid did not have the purpose or effect of advancing, inhibiting, or endorsing religious observance or indoctrination.

It has also long been commonplace for government to provide public funds to religiously affiliated separate entities — most commonly "501(c)(3)" charitable corporations -- such as Catholic Charities USA, that provide social services. New Jersey's Department of Housing Services, for example, pays over $100 million, or 10% of its social service contract budget, to religiously affiliated social service agencies. So long as the separate entity that receives the government funds serves purely secular functions and the government funds are allocated without regard to religious affiliation, this practice has not generally been thought to raise Establishment Clause concerns. But the Charitable Choice Act is different: It would allow direct public funding of churches, synagogues and mosques without requiring that those funds be administered and accounted for in a separate legal organization (albeit the government funds must be kept in a separate bank account).

Accordingly, the bill raises a question that the Supreme Court has thus far avoided answering: Is the direct flow of government money into the coffers of a religious congregation ever constitutional? The answer is not clear, but it may well be no.

A principal original purpose of the Establishment Clause was to prevent public money from being used to pay the salaries of clergy or for religious instructional materials. If government money goes directly to a religious congregation, such uses may be impossible to prevent. Moreover, efforts to police or regulate a religious organization's use of government money could constitute improper government entanglement with religion — and a Free Exercise Clause violation. From the standpoint of religious freedom, the prospect of IRS accountants combing through church accounts is a gloomy one.

Civil Rights Issues: Autonomy and Non-Discrimination

Another aspect of the bill presents a classic conflict between freedom of association and civil rights (and, incidentally, the neutrality principle).

Title VII of the Civil Rights Act of 1964 currently exempts privately funded nonprofit religious organizations from general civil rights laws prohibiting employment discrimination on grounds of religion (but not from prohibitions on race, color, sex or nationality discrimination). The basic common sense idea behind the exemption is to avoid government interference in religious observance: Muslims should not be forced to employ a Jewish imam, and Catholics should not be forced to listen to Buddhist sermons at Mass. But because deciding what aspects of congregation activities constitute religious observance would itself entangle the government in theological judgments, the exemption has been read to cover all employees of a privately funded religious nonprofit.

But what about a therapist working for a religious organization in its government-funded childcare program — where the rules of the government funding (and the Establishment Clause) already require that her services be purely secular in content? Alicia Pedreira was doing just that at Kentucky Baptist Homes for Children before she was fired in 1998, allegedly because her sexual orientation was inconsistent with Baptist values.

How does the Charitable Choice Act address this conflict? Essentially, religious organizations win, and employees lose. Religious autonomy trumps the interest of the government — and of employees — in ensuring that secular jobs funded by government money are available to those of all creeds.

Indeed, the current version of the bill not only extends the religious hiring exemption to government-funded religious organizations. For religious employers receiving federal funds, it also preempts other state employment law protections — including protections for gays and lesbians — insofar as they go beyond the basic federal protections against race discrimination and the like.

Defenders of the bill typically justify this provision as essential to preserve the integrity of an individual local congregation, where religious and secular functions alike are performed by a small, close-knit group consisting of the minister's family, church elders and volunteers. But the bill would also encompass large international organizations, like the Salvation Army, which have millions of dollars of government money and thousands of jobs at stake in their social service programs. Charities and nonprofits — not all of which would partake in charitable choice programs — employ 7% of the nation's workforce, and religiously affiliated social service organizations are major employers in many poor communities.

Restricting eligibility for government-funded salaries in such contexts on the basis of religion compromises the neutrality principle and so raises Establishment Clause concerns. And, as last week's controversy over whether the White House promised the Salvation Army an exemption from gay rights laws highlighted, even if they are constitutional, such exemptions from civil rights laws raise serious questions about whether charitable choice would really prevent, or facilitate, discrimination.

Practical Issues: What About the Needy?

Finally, let's not forget the objective of the programs we're talking about: delivering social services to those in need. What will charitable choice do for them?

To begin, charitable choice will not change the size of the government-funded social service pie. It is not new money; but simply a new set of rules for allocating government money between religious and non-religious charities.

Those concerned with the financial well-being of charities should look elsewhere in the law — to the tax code. The Treasury Department has estimated that the recently enacted gradual repeal of the estate tax, once complete, will reduce charitable giving by $6 billion a year. On the other hand, legislation proposed earlier this year expanding charitable tax deductions to non-itemizers could, according to PriceWaterhouseCoopers, have increased charitable giving by $15 billion a year. Other budget priorities have, however, led to a scaling down of that proposal, so that the current non-itemizer deductions being considered in the House would yield only a fraction of that sum.

Second, charitable choice will not provide any new powers to state and local government to partner with religious and other social service organizations. As the New Jersey DHS example shows, state government agencies can and do already work with religious and secular partners. Charitable choice simply says that they can be sued if they unduly prefer the secular (or particular religious) ones, or if they fail to provide an accessible alternative to beneficiaries who object to religious service providers. No one has yet come up with an estimate of the compliance and litigation costs that these obligations will entail.

Finally, some contend that by encouraging the use of religious service providers, social service performance will be improved, because religious agencies perform better than secular ones. But as White House advisor John DiIulio has stated, the empirical evidence on this point is mixed and inconclusive, in no small part due to a problem that plagues all such cross-agency performance comparisons: Different beneficiaries, who may be more or less susceptible to mentoring and other benefits, choose different programs. Furthermore, making the comparison is inherently problematic: Many successful religious service programs employ religion as a core element of their mentoring or life skills training — and that is constitutionally forbidden for government-funded programs.

Of course, none of this should cast any doubt on the value of religious, as well as secular, charities that supplement government services, or on some of the Administration's other efforts to harness the power of volunteerism. But whether the Charitable Choice Act before Congress is the solution to the nation's ills, or just a new set of federal mandates burdening local government and blurring church/state lines, remains a matter for debate.


Findlaw columnist Simon Steel is an attorney at the Federal Trade Commission. The views expressed are solely his own. House Judiciary Committee materials relating to testimony and debates on the Charitable Choice Act may be found here and here.

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