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RELIGION, PUBLIC FUNDS, AND ACCOUNTABILITY: President Bush's White House Office Of Faith-based And Community Initiatives

Thursday, Mar. 15, 2001

In January, President Bush instituted the White House Office of Faith-Based and Community Initiatives to funnel federal funds to religious organizations for activities by which they minister to the needy. In response to questions about the constitutionality of this aid, Professor John DiIulio, Jr., the Office's new head, repeatedly promised to give funds only to organizations with "good results."

These two legal developments are headed for a collision. One must give way for the other to survive. It is impossible for the federal government to enforce provable success requirements if at the same time churches are going to insist on autonomy from government oversight. Either churches can be immune from government intermeddling, or they must agree to account to the government for their use of the people's funds, with all the oversight and government intrusiveness that entails.

At the very least, the collision will box in religious interests who might attempt to have it both ways. The same entity certainly cannot sustain a public position that government intermeddling is fine whenever the church receives money from the government, but not when its clergy members engage in or cover up the abuse of children or disabled adults. In the lingo of constitutional doctrine, the protection of a child or disabled adult from abuse is at least as compelling a state interest as is ensuring government funds are expended as intended.

The Need for Oversight: Historical Lessons

The combination of federal funds directed to religious coffers and a governmental decision not to oversee how the money is spent could be a disaster for the needy who are the target of these initiatives. The lessons of history on this score are worth retrieving.

When President Ulysses S. Grant faced the "Indian problem" — that is, the restriction of Native Americans to reservations, where they were both banned from hunting and too inexperienced to farm productively enough — he declared that government could not do the job. Rather, urged by religious leaders, he looked for mainstream religious denominations to "Christianize the Indians" using federal funds. In a scenario with eerie similarities to the present, the federal government declared itself incapable of delivering social services but determined to fund them.

Thus, the Grant Administration instituted the "Peace Policy," assigning particular reservations to particular Christian denominations. (One of the most immediate effects of this, unfortunately, was to generate interdenominational conflicts, especially between the Protestants who received the assignments and the money, and the Catholics, already out West, who did not.)

When responsibility for the Native Americans' welfare shifted from the government to religious organizations, Congress did not allocate enough money to make it work. Native Americans themselves had inadequate bargaining power (to understate the principle by a mile); as a result, the lack of government oversight was disastrous.

There were no enforceable requirements of success for the religious organizations. Partly as a result, under the Peace Policy, denominations used their limited funds to proselytize–rather than to teach the agrarian techniques that were sorely needed–and many of the Native Americans starved.

Making a Results Requirement Enforceable

To be fair to the Bush Administration, this organization may be an anomaly, for unless Bible-buying is provably effective by itself in curing addiction or hunger, under Bush's plan, the organization ought to lose its funds — regardless of whether or not it wins the right to buy Bibles in court. In short, the Bush Administration's argument that it will require success would seem to distinguish it from Grant's Administration.

But not so fast. Just as the present-day Bible buying organization can expect Establishment Clause attacks, so an intrusive government program may trigger "church autonomy" responses rooted in the Free Exercise clause. Thus, the question posed by the resurgence of the church autonomy doctrine is whether the government will be able to effectively enforce the requirement that federal money may only flow to successful organizations. Will the government be able to get close enough to church workings to take a close look at how government money is spent, or will autonomy require the government to step back, and hold back on its oversight?

Religious organizations' expenditures will need to be closely scrutinized, as will their claims of success. That will require serious intrusion into the books of each organization receiving government funds or, at the very minimum, random checking into the well-being of the needy people who are the recipients of the organizations' faith-based services.

John DiIulio himself has declared that we do not know for certain that religious organizations are more effective than, or even as effective as, their secular counterparts. If he is correct, then proof of success cannot come from pre-existing private or government studies, it must come from grassroots, on-the-ground government monitoring of the organizations that receive funds.

Money Versus Autonomy: Churches' Choice

Unless the United States is to repeat the errors of the Grant Administration — this time with drug-addicted youth and hungry children of all backgrounds — religious organizations are going to have to make an age-old choice: money or autonomy. Even if they choose autonomy from government money, they will still face an uphill battle arguing for pure autonomy from many generally applicable laws.

Pure autonomy is a position the Constitution, respectful of both religious organizations and the jurisdictions that house them, never has embraced. While one can imagine the constitutional justifications for permitting a church to keep its financial records secret as a general matter, one must wonder about a constitutional principle that would hold the church's finances absolutely off-limits when the subject is care–or lack of care–of those who may have difficulty defending themselves, children, the disabled, the troubled, and the poor.

Marci A. Hamilton, a FindLaw columnist, is a professor at NYU Law School. Her e-mail address is

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