Planting or Clearing Mines on an Unlevel Playing Field?

Showdown in the Senate over the Faith-Based Initiative

by James W. Skillen

The wrangling started early in the House of Representatives where, on July 19, members finally but narrowly approved HR 7, the bill that is supposed to advance President Bush's faith-based initiative. Now it's the Senate's turn, and Senate Majority Leader, Tom Daschle (D-S.D.), who is suspicious of the measure, has turned to Joe Lieberman (D-Conn.) to take the lead in formulating the Senate's version of the bill—a formulation the president may not like.

Both Lieberman and Al Gore endorsed the Charitable Choice provision of the 1996 welfare-reform law and even campaigned for the White House in 2000, as Bush did, on a platform that included expansion of the provision. Moreover, Lieberman, Daschle, and company haven't complained about the fact that for more than a decade the U.S. Supreme Court has been upholding the legitimacy of government funding of professedly religious organizations, as long as the funds are not targeted particularly or exclusively at such organizations.

For Democratic leaders to question or oppose Bush's efforts now appears to be a "purely political" move. However, the situation is not quite that simple. The political polarization is there, to be sure, and both sides bear responsibility for that. But underlying the political positioning there is a deeper conflict in American life over religion and government that has not yet been resolved in Congress, in the White House, by the Supreme Court, or among the people. And this is the conflict that President Bush and Senator Lieberman do not appear to be in a strong position to resolve. Consider the following three arguments.

Conflicting Arguments

1. Government should not fund or contract directly with houses of worship. Any church, synagogue, mosque, or temple that wants to offer the kind of social service that government funds should set up a separate nonprofit organization for that purpose and comply with standard civil rights laws. [This is the position of the lead editorial in The New York Times, July 8, 2001.]

The contrast presented here between houses of worship and separate nonprofit organizations is, institutionally speaking, an important distinction. Catholic Charities, a social service organizations, is not the Catholic Church. The National Association of Evangelicals is not a congregation or a church denomination. Yet this valuable distinction does almost nothing to resolve the current debate. A Muslim drug-rehabilitation center can be pervasively Islamic even if it is not a mosque or run directly by a mosque. Those who emphasize the distinction typically assume, however, that non-ecclesiastical nonprofit organizations are supposed to be held to secular standards if they cooperate with government, thus keeping government from "entanglement" with religion. From this viewpoint, government provides only "nonsectarian" services; the proper place for religion (the "sectarian" part of life) is inside a house of worship.

2. The second, frequently heard argument is this: "Pervasively sectarian" ("too religious") organizations should not be eligible for government funding or contractual relationships. However, faith-based non-profit organizations that keep their "sectarian" practices separate from "secular" services should be allowed to cooperate with government in delivering the "secular" services because in that case the organizations are not "too religious" or "pervasively sectarian." [This is essentially the argument of HR 7, the House bill passed in July, and supported by President Bush.]

This argument pushes the sacred/secular division inside nonprofit organizations. Many separately incorporated day-care centers, job-training programs, hospitals, and welfare-service organizations may still display or insist on their religious purpose or inspiration, but that need not inhibit their cooperation with government as long as the organization agrees to internalize the distinction between the religious and the secular, between what is sectarian and what is nonsectarian. In the nineteenth century, Catholic schools were denied funding by public authorities who decided to fund only "nonsectarian" (generally Protestant) common schools. Eventually, however, Catholic school leaders went back to government to ask for funding for some of the "nonsectarian" or "secular" elements within their schools—certain textbooks, lunches, school busing, and more. This frame of thought, you see, allows one to continue to think of religion as something quite narrow even if it somehow extends into "non-churchy" organizations. Regardless of how religious an organization may be, much of what it does can be viewed as "secular" from a dualistic point of view. All a religious nonprofit organization has to do to get funding is agree to adopt a dualistic self-interpretation and pattern of behavior.

3. A third argument goes like this: Faith-based organizations have supposedly been slighted by, or excluded from cooperation with, government, and the Charitable Choice provision was adopted to correct that error. But Charitable Choice was unnecessary, because government has cooperated with and funded faith-based organizations for a long time without significant controversy. [See David Broder's syndicated newspaper column, July 11, 2001.]

This argument actually brings the first two arguments into collision with one another. What type of faith-based organizations has government cooperated with so comfortably over the past three or four decades such that Charitable Choice seemed to be necessary? Precisely those that agreed to the dualism required by the second argument. But that arrangement is not what Charitable Choice tried to counter. There are thousands of "non-churchy" nonprofit organizations in this country that have insisted on a religious identity through and through. In other words, they refuse to internalize a division between supposedly "sectarian" and "secular" parts. These organizations are precisely the ones that have been denied the opportunity to cooperate with government in social-service delivery because they were judged to be "too religious" or "pervasively sectarian." Therefore, to deny that there was any need for Charitable Choice is simply to deny the legitimacy of government's cooperation with religiously non-dualistic organizations. But to do that makes irrelevant the first argument above. Even if a house of worship sets up a non-profit organization in order to carry out its religiously motivated social services, the nonprofit will still be denied recognition if it appears to be too religious. Thus, to establish a separate nonprofit gives no advantage to those who refuse to bifurcate themselves.

So the bottom line of all three arguments is that government may and ought to impose the dualism of sacred/secular, sectarian/nonsectarian on everyone. Forget the First Amendment's guarantee of religious freedom; if a religion does not permit its followers to bifurcate their existence into "pervasively sectarian" and "secular" parts, then they will not enjoy the same freedom, benefits, and equal treatment that dualists enjoy in public life.

Is There a Way Out?

In the final analysis, then, we return to fundamentally different convictions about what religion and government are really about. If religion is simply a "churchy" thing and most of life is "secular," then government and the courts can keep the two elements separate by isolating religion in private quarters. If, however, religions are "ways of life" and not merely ways of worship, and if these different ways of life cannot be confined inside houses of worship, then it is entirely illegitimate for government to impose on all citizens a dualistic way of life followed out of conviction by only some citizens. That amounts to an unconstitutional establishment of religion and outright religious discrimination.

The only way out of the dilemma is to reject all three arguments above and to insist on government's equal and nondiscriminatory treatment of all nonprofit organizations, regardless of how religious, or irreligious, or dualistic they claim to be. Unfortunately, the Charitable Choice provision of the 1996 welfare law did not go all the way in this direction, nor have President Bush and the Congress done so thus far. Therefore, ambiguity remains, and senators who accept the dualism of sacred/secular will undoubtedly exploit that ambiguity just as members of the House did.

What Charitable Choice says, positively, is that thoroughly religious organizations should not be excluded from cooperation with government simply because they are religious. Nevertheless, the rule is that the "sectarian" and the "nonsectarian" elements will have to be distinguished inside an organization if it wants to cooperate with government. Charitable Choice says that eligible recipients of public benefits may receive those benefits from faith-based organizations but that recipients are free not to participate in the religious parts of the programs offered by such organizations.

Furthermore, Charitable Choice says that if an eligible recipient finds only religious organizations available and doesn't want to use them, government must provide a "secular" alternative. By contrast, Charitable Choice does not say, in an evenly balanced way, that if a religious person is uncomfortable with the secular ideological components of a government-funded program, he or she is free not to participate in the program's ideological components. Nor does Charitable Choice say that if a religious person finds only secular organizations or programs available, government must make available a satisfactory religious alternative. The political and legal bias is still in favor of secularism over integral religiosity and in favor of dualistic over non-dualistic organizations.

In the upcoming Senate debates the old "separationists" will say it is fine for government to cooperate with faith-based groups, as it has always done, but only if funding goes only to support nonsectarian ("secular") services. If Congress passes and the president signs this kind of law, it will mean relatively little change in the status quo and relatively few new organizations will choose to cooperate with government on this basis. Monopolistic dualism will continue to triumph over genuine pluralism.

Instead, what should come from Congress is a bill that says government will henceforth be clear in stipulating the kinds of services—welfare, drug treatment, housing—it is authorizing and paying for. And on that basis it will insist that states cooperate—whether by direct grant or vouchers—with any organization that can demonstrate the capability of delivering those services successfully, regardless of the confessional or philosophical character of the organization. The president should only sign a law which makes clear (1) that government has no right to insist that organizations internalize a sectarian/ nonsectarian dualism, (2) that religion is something religious people, not governments, have the right to define, and (3) that government's cooperation with integrally religious organizations constitutes no violation of the First Amendment as long as no particular religion or non-religion is singled out for special treatment.

What we need, indeed, is a level playing field.

Unlevel Playing Field: Barriers to Participation by Faith-Based and Community organizations in Federal Social Service Programs

A report from the White House, August, 2001

When George W. Bush took office as president last January, he issued an Executive Order that established five "Centers for Faith-Based and Community Initiatives" at the federal departments of Health and Human Services (HHS), Housing and Urban Development (HUD), Education (ED), Labor (DOL), and Justice (DOJ). Each of these "Centers"(as they are referred to in the report) was charged to conduct "a department-wide audit to identify all existing barriers to the participation of faith-based and other community organizations in the delivery of social services . . . ." Excerpts from the report follow. —Ed.

Officials know that there have long been many and varied Federal collaborations with religiously affiliated providers of social services. Some Federal departments, over the past few years, have reached out to faith-based organizations. . . . Recent U.S. Supreme court decisions have shifted markedly over the past few decades toward a neutrality framework that honors evenhandedness and pluralism, allowing the Government to treat all potential providers equally without singling out some as being "too religious" for Government support.

But Federal officials, and State and local officials participating in Federal formula grant programs, often seem stuck in a "no-aid," strict separationist framework that permitted Federal funding only of religiously affiliated organizations offering secular services in a secularized setting, and [denied] equal treatment to organizations with an obvious religious character. As the Labor Department's report notes, reviewers of grant applications assume that Jefferson's "wall of separation" metaphor automatically disqualifies all but the most secularized providers, leading to Federal resistance to collaborating with religious groups, and thus the actual exclusion of faith-based organizations despite the absence of any constitutional or statutory basis. . . .

Such restrictive attitudes beget an administrative bias against religion and religious organizations where the Constitution requires that there be none.

HUD reports that no faith-based organization received any of the Self-Help Homeownership Opportunity Program's $20 million funding in FY 2000. In fact, Habitat for Humanity, International, won just over half of the total funding, and Habitat, of course, is a faith-based organization (it calls itself "a nonprofit, ecumenical Christian organization"). With mind-bending logic, HUD officials apparently reasoned that since the government may not aid religion, and yet HUD funds Habitat, then Habitat must not be a faith-based organization. (In HUD's own scheme, since Habitat provides "essentially secular housing services," it is not a "primarily religious" organization and thus is not excluded from Federal Funding.) . . . .

Conclusion: No faith-based service group has an automatic right to obtain Federal funding either through direct discretionary grants or through State and local governments' provision of Federal formula grants. Similarly, community-based organizations have no automatic right to Federal funding. But both faith-based and community organizations should have an equal opportunity to obtain such funding, if they choose to seek it. A sensible, results-driven policy requires the Government to examine outcomes—that is, what an organization achieves with the funds—rather than to the character of the organization. That is, whether it is . . . "too religious" or "secular enough." Federal agencies should use grants to underwrite the most effective programs.