The Neutral Treatment of Religion and Faith-Based Social Service Providers: Charitable Choice and Its Critics
CARL H. ESBECK
Although not a participant in the conference that gave rise to the papers collected in this volume, I am grateful for the opportunity to address Charitable Choice 1 and the questions of federal constitutional law that it raises. I begin by paring down the issues among the authors arrayed here. In doing so, what is most striking is not our remaining differences but that the points of agreement exceed those still in dispute.
First, no scholar seriously doubts whether indirect (as opposed to direct) funding of faith-based social service providers is permitted by current U.S. Supreme Court case law. It is. In Mueller v. Allen,2 handed down in 1983, the Supreme Court upheld a state income tax deduction for tuition and related expenses when parents enroll their children in K-12 schools, including religiously affiliated schools. The Supreme Court reasoned that merely enabling parental choice -- freely electing or not electing religious schooling for their children -- logically cannot be characterized as an establishment attributable to the government.3 When the funding is indirect, government is removed from the relevant decision which determines where the money ultimately goes. Thus, the government is largely passive in these indirect funding