The Faith-Based Initiative, Charitable Choice, and Protecting the Free Speech Rights of Faith-Based Organizations
Broyles, Vernadette Ramirez, Harvard Journal of Law & Public Policy
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. …