The Faith-Based Initiative, Charitable Choice, and Protecting the Free Speech Rights of Faith-Based Organizations

Article excerpt

   We ought not to worry about faith in our society. We ought to
   welcome it into our programs. We ought to welcome it in the
   welfare system. We ought to recognize the healing power of faith in
   our society.

   --President George W. Bush (1)

I.   CONTEXT
  A. Many FBOs Express Religious Perspectives
     on Social Problems
  B. Charitable Choice and Agency Guidelines
     Impose Speech Restrictions in Directly Funded
     Programs
II.  FREE SPEECH PROTECTIONS FOR
     FAITH-BASED PROVIDERS
  A. The Free Speech Clause Protects the Religious
     Speech of Faith-Based Providers from
     Viewpoint Discrimination
  B. The Free Speech Clause Protects Relevant
     Speech That May be Characterized as
     Proselytizing or Religious Instruction
     from Viewpoint Discrimination
  C. Government Funding of Social Services
     Implicates Private Free Speech Rights
     1. The Speech of Publicly Subsidized Faith
        Based Providers is Private Speech
     2. Whether the Government Specifically
        Intended to Create a Public Forum For
        Speech is Not the Issue
     3. McCallum Places Too Much Reliance on Rust
        v. Sullivan
     4. McCallum Would Convert All Social
        Service Contractors and Grantees Into
        an Arm of the Government
III. ADDRESSING ESTABLISHMENT
     CLAUSE CONCERNS
  A. Viewpoint Discrimination Violates the Principle of
     Neutrality Toward Religion Required by the
     Establishment Clause
  B. Viewpoint Neutral Protection of FBOs' Religious
     Speech Would Not Constitute an Endorsement of
     Religion
  C. Prohibitions on Religious Speech Risk Excessive
     Entanglement
  D. Concern for Government Religious
     Indoctrination Does Not Override Free Speech
     Protections for FBOs
  E. Clarifying Further the Distinction Between Protected
     Religious Speech and the Prohibited Funding of
     Religious Activities
IV.  RECOMMENDATIONS
  A. Agency Guidelines Must Clarify Existing Charitable
     Choice Provisions and Amend Existing Agency
     Restrictions
  B. Charitable Choice Expansion Legislation in Congress
     Should be Amended
  C. A Separate 501(c)(3) Should Be Created To Receive
     Direct Public Funds
  D. Essential Parameters of Government Programs That
     Directly Fund FBOs
  E. Ensuring that Participation in Faith-Based Programs
     Is Voluntary
  F. Categorizing FBOs Based On Their Use of Religious
     Speech Should Be Avoided
V.   CONCLUSION

As part of the "faith-based initiative," President Bush has welcomed the faith community back into the public square as equal partners alongside government, corporate, and other community groups in the war on poverty and dependency. Significantly, the President vowed to issue this "call to arms" without impairing the religious character of faith-based social programs that respond.

As this initiative moves forward, however, there is an inadequate understanding of the constitutional protections afforded faith-based organizations ("FBOs") to freely express their unique religious solutions and perspectives on social issues without being excluded from direct public funding. Current statutes and policies that discriminate against the religious viewpoints of FBOs have the effect of suppressing their unique character and risk alienating them entirely from participating in government programs. More significantly, they deny FBOs the right of freedom of speech guaranteed in the United States Constitution.

One example of the threat to FBOs' free speech rights is a section of Charitable Choice (a provision of the Welfare Reform law) that prohibits the use of federal funds for "sectarian instruction" or "proselytizing" by private social service organizations. Agency guidelines contain similar speech restrictions as a condition of funding. While the intent behind such prohibitions may be to avoid the use of public funds for exclusively religious activities, these injunctions are likely to restrict speech that conveys a religious perspective relevant to publicly funded social issues. …