Getting Faith-Based Programs Right
Diiulio, John J., Jr., The Public Interest
CONTRARY to much commentary on the subject, a clear-cut consensus exists on the constitutionality of permitting local congregations and other faith-based organizations to deliver diverse social services funded in whole or in part by government. As Philip Hamburger writes in his recent book Separation of Church and State, the constitutional authority for strict separation is "without historical foundation," and over the years, the Supreme Court has indeed retreated from a strict separationist approach.
When, in his second term, President Bill Clinton signed into law several federal statutes known as Charitable Choice, he was simply codifying the settled understanding. Government must not discriminate against faith-based organizations in awarding funds for the administration of public programs. No government agency may require religious congregations or other faith-based nonprofit organizations to remove sacred art or other symbols either as a condition for receiving grants or as a condition for being deemed in compliance with program-specific administrative rules or regulations. At the same time, faith-based organizations that accept public funds must use them only to fulfill civic, secular purposes. No public funding may be used for proselytizing, sectarian instruction, or worship services. In administering programs funded in whole or in part by tax dollars, religious congregations and other faith-based nonprofit organizations may not discriminate against any present or prospective program beneficiary on the basis of religion, and government must ensure that a secular program alternative is available to any beneficiary who wants one. Under federal law, religious congregations and other faith-based organizations retain the right to take religion into account in any employment decisions involving public funds, but this so-called ministerial exemption is limited.
The real moral majority
The general public strongly supports the constitutional balance that is reflected in charitable-choice laws. For example, in opinion surveys conducted in 2001 and 2002 by the Pew Forum on Religion and Public Life, wide majorities backed charitable-choice legislation. They agreed that program beneficiaries "should have a variety of options," including religious providers, and that religious service providers are "more caring and compassionate" than non-religious ones.
But the public has also registered its strong reluctance to move beyond the charitable-choice framework. In the same surveys, similarly wide majorities opposed government support for faith-based programs that "only hire people of the same faith" or require beneficiaries "to take part in religious practices." Many ministry leaders who serve urban communities support these views. For example, research conducted in 2000 by University of Pennsylvania scholar Ram Cnaan found that about 65 percent of African-American church leaders in Philadelphia favored the charitable-choice approach.
The constitutional, popular, and clerical consensus for Charitable Choice is further backed by bipartisan political sentiment. During the 2000 presidential campaign, both candidates preached the gospel according to Charitable Choice. On May 29, 1999, Al Gore spoke with unusual passion at the Salvation Army drug-treatment center in Atlanta, Georgia. "Freedom of religion need not mean freedom from religion," he declared.
These groups nationwide have shown a muscular commitment to facing down poverty, drug addiction, domestic violence, and homelessness. And when they have worked out a partnership with government, they have created programs and organizations that have woven a resilient web of life support under the most helpless among us.
Two months later, on July 22, 1999, George W. Bush echoed Al Gore. Surrounded by inner-city clergy in Indianapolis, he rejected as "destructive" the "idea that, if government would only get out of the way, all our problems would be solved. …