Catching Up to the Courts

Opponents of the faith-based initiative sometimes claim that it violates the U.S. Constitution and represents a deliberate effort to overturn the settled constitutional requirement of a high "wall of separation" between church and state. The First Amendment indeed draws a dividing line between the institution of government and the institution of church--for the protection of both. But it does not ban religion from public life nor forbid government collaboration with faith-based organizations when the collaboration is structured properly.

Far from a wanton attack on the First Amendment, the principles and rules of the faith-based initiative were developed exactly to bring government into line with the Constitution. In the early 1990s, constitutional scholar Stephen Monsma pointed out that, although government programs often respectfully enlisted faith-based organizations as their social-service collaborators, the then-dominant "strict-separationist" interpretation of the First Amendment left such partnerships vulnerable to challenge. He argued that a neutrality interpretation was truer to the First Amendment and validates appropriate partnerships.

In the mid-1990s, constitutional law professor Carl H. Esbeck pointed to a series of federal and state policies and practices that violated the "'neutrality" or "equal treatment" understanding of the First Amendment. Esbeck developed a set of legal provisions that could be placed into the laws governing social-service programs to reflect this new view of the First Amendment to which the U.S. Supreme Court was moving. These provisions came to be known as "Charitable Choice" and first became part of federal law through the 1996 welfare reform law (Personal Responsibility and Work Opportunity Reconciliation Act).

More recently, the constitutional law experts of the Roundtable on Religion and Social Welfare Policy, which proclaims itself the nonpartisan and unbiased interpreter of the faith-based initiative, said this about the changes to government policy and practice introduced by the faith-based initiative:

"The architects of the [federal] Faith-Based and Community Initiative deserve a tremendous amount of credit for collapsing the normal time lag between legal change and bureaucratic change. . . . [T]he federal officers running the Initiative have essentially forced [a] kind of consciousness-raising on bureaucratic and social service culture about the exclusion of faith organizations." [Professors Ira Lupu and Robert Tuttle, George Washington University Law School and the Roundtable on Religion and Social Welfare Policy, State of the Law 2004 (PDF), opening plenary session, 2004 Annual Conference of the Roundtable on Religion and Social Welfare Policy, Dec. 9, 2005, Washington, DC.]