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House Rejects 24-Year Precedent of Charitable Choice in CSBG Program

On May 13th, the House of Representatives passed H.R. 5129, a bill to reauthorize the Community Services Block Grant program—but without its Charitable Choice provision. Charitable Choice language, added to several federal programs in the later 1990s, is designed to ensure that faith-based organizations are not excluded from federal funding for being “too religious” to partner with government. The House vote was 246 to 169 to accept a CSBG law without Charitable Choice. The Yes vote included all Democrats who voted and thirty Republicans. The bill now goes to the Senate, where additional efforts will be made to keep Charitable Choice in CSBG.

The federal Community Services Block Grant program (CSBG) supports Community Action Agencies (CAAs) in low-income neighborhoods across the United States. CAAs go back to President Lyndon B. Johnson’s War on Poverty as a unique federal effort to enable the residents and organizations of poor communities to help guide government efforts to help them. CAAs—with governing boards that include local residents—provide services and also fund local organizations to provide help, and they also encourage other organizations to offer services and help to coordinate the assistance. 

The Charitable Choice language had been added to the CSBG program in 1998 by a bipartisan bill co-sponsored by Democratic Senator Ted Kennedy and Republican Senator Dan Coats. The Charitable Choice language makes it clear that even faith-based organizations with an overt religious character and overt religion-based practices are eligible to receive CSGB funding to offer services and eligible to be designated as a CAA. Charitable Choice—first put into law as part of federal welfare reform in 1996—was needed because of the then-common “no aid to religion” doctrine thought to be required by the First Amendment’s ban on the establishment of religion. 

Guided by this doctrine, government programs partnered with “religiously affiliated” organizations—organizations with a tie to a denomination or congregation but not themselves “too religious” in identity or practice. Other organizations, considered “pervasively sectarian” because of practices such as hiring based on religion or because of a religious mission statement, were excluded from funding. Charitable Choice set a new standard: equal access to federal funding by faith-based organizations of whatever degree of religious identity and practices, in a framework of rules that protects beneficiaries of the services from unwanted religious pressure.

Rejecting its previous interpretation of the First Amendment, over the past two decades the U.S. Supreme Court has repeatedly affirmed the equal eligibility of faith-based organizations to compete for government funding [Espinoza v. Montana Department of Revenue (2020); Trinity Lutheran Church v. Comer (2017); Mitchell v. Helms (2000); Zelman v. Simmons-Harris 2002)]. Charitable Choice is Congress’s specification of how this equal treatment principle is to be implemented when federal, state, or local agencies use federal funds to pay for services provided by private organizations.

Based on the change in the Supreme Court’s doctrine and the enactment of Charitable Choice by Congress for CSBG and several other programs, President G. W. Bush promulgated Equal Treatment regulations to govern federal social spending not covered by Charitable Choice. These regulations have, with some changes, been supported by the Obama, Trump, and Biden administrations. But CSBG has its own regulations and is only partly subject to the Equal Treatment regulations.

When H.R. 5129 was considered in the House Education and Labor Committee in March and then on May 13th by the whole House, opponents of Charitable Choice said that the protective language was no longer needed to ensure the eligibility of faith-based organizations. They also said that the language should be removed so that organizations that hire based on religion and that discriminate on religious grounds against people needing services will be ineligible for CSBG funding. 

It is true that the Supreme Court’s decisions make it clear that religious organizations cannot be excluded from funding, and the Equal Treatment regulations set out principles, based on Charitable Choice, for their involvement and for protection of beneficiaries. But Court decisions do not give the needed detail. And while the Equal Treatment regulations do provide the details, regulations are inherently easily changed. Better for CSBG—and other federal funding programs—to keep the Charitable Choice principles in the law itself and not only in regulations.

It is also the case that faith-based organizations will partner with Community Action Agencies whether or not Charitable Choice is in the CSBG law, as defenders of removing the language claim. Various religious organizations won government grants and other funding before Charitable Choice was ever put into law. The issue is what kind or range of faith-based organizations will be able to participate in CSBG. Recall the wariness about the full legitimacy of faith-based participation in the years before Charitable Choice. Organizations thought by officials to be “too religious” were excluded. And, now, the main motivation for removing the Charitable Choice language appears to be to restrict participation by faith-based organizations with a strong religious identity and overt religious practices—say, organizations that engage in religious staffing and that offer religious activities. 

Such practices are the target of the critics. Religious staffing by faith-based organizations that receive federal funding, they are sure, is wrong and is, or ought to be, illegal. And faith-based organizations that receive federal funding and that also offer religious activities—surely they will not treat fairly beneficiaries not interested in their religion, even if the rules specifically protect those beneficiaries

The charge that Charitable Choice authorizes religious discrimination against employees and people needing help is longstanding but wrong. Title VII of the 1964 Civil Rights Act has from the beginning protected the freedom of faith-based organizations to consider religion in their employment decisions—that is, according to this foundational employment civil rights law, it is not illegal discrimination for a religious organization to engage in religious staffing. However, many presume that this freedom vanishes when a faith-based organization receives federal funds. But this is not so. A U.S. Supreme Court decision unanimously upheld the religious staffing freedom (Corporation of the Presiding Bishop v. Amos, 1987) without requiring the absence of government funding. Title VI of the 1964 Civil Rights Act, which prohibits discrimination by recipients of federal funds, does not mention religion and does not generally regulate employment. Court cases, such as one involving the Salvation Army, have protected religious staffing by faith-based recipients of government funding.

Because the mistaken view is so prevalent, Charitable Choice in CSBG simply restates the freedom of faith-based organizations accepting the funding to continue to staff according to religion. But Charitable Choices does not create the freedom and removing the language will not remove the freedom.

Nor does Charitable Choice authorize religious discrimination against beneficiaries. Instead, Charitable Choice prohibits recipients of CSBG funds from using the money to pay for religious teaching and religious activities, thus protecting people seeking assistance from religious pressure. And the CSBG regulations, based on Charitable Choice and in part on the Equal Treatment regulations inspired by Charitable Choice, specifically prohibits religious discrimination in admitting and serving beneficiaries.

The critics of Charitable Choice are wrong in their presumptions and objections.

Churches and other faith-based organizations are involved in multiple ways with Community Action Agencies, including donating funds and goods to CAAs and collaborating with CAAs in non-financial service partnerships. These are not controversial partnerships. Charitable Choice is particularly needed for another reason. It specifically paves the way for two kinds of involvement by religious organizations that government entities and Community Action Agencies otherwise do not necessarily favor: (i) the equal opportunity to compete for CSBG funding to provide local services, and (ii) the equal opportunity to become a Community Action Agency. 

Removal of the Charitable Choice language most likely will be understood by local officials and Community Action Agencies as justifying their reluctance to treat faith-based organizations as fully eligible to receive CSBG funds and to become CAAs themselves.

Charitable Choice should be kept in CSBG to make it clear to all that even faith-based organizations with a strong religious character have the equal right to compete for funding and to be designated as a Community Action Agency. 

IRFA organized a sign-on letter in March to the Education and Labor Committee arguing that Charitable Choice should be kept. We organized a similar letter the week before the House vote with the same message. That letter was entered into the Congressional Rccord. Catholic Charities USA and the U. S. Conference of Catholic Bishops together sent a letter to the House. 

Now that action will move to the Senate, we and others will urge the Senate not to follow the House’s misguided action but instead to make sure that Charitable Choice is retained. When Charitable Choice was first put into CSBG and the other laws, this action was rightly seen as a very important precedent—as a strong signal from Congress that faith-based organizations should have the same opportunity to partner with government as secular organizations and that the rights of beneficiaries can be protected at the same time as the religious identity and practices of the faith-based organizations are protected. Keeping Charitable Choice when CSBG and the other laws are reauthorized sends the strong signal that Congress remains committed to that vital goal.

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