COWTOWN RAM

Conrad F. Goeringer:

Breaking Down the Wall at Treasury: “Charitable Choice,” Faith-Based Partnerships and Public Funding Of Religion

Thank you very much.

Looking at today’s schedule which places me as the final speaker -- at the end of what I hope has been a fruitful and enlightening day for you, it has been for me -- I pay homage to the 16th century English poet Edmund Spenser. While a defender of the Protestant faith, his words nevertheless reach out across the eons to me today when he wrote the phrase Thou last not least.

What I’d like to talk about today should be neither “last nor least” on our list of social goals as Atheists and state-church separationists, and this is the issue of the public funding of religion. This has emerged as one of the campaign issues in the current election. Both major political candidates -- Vice President Al Gore, and your own Gov. George W. Bush -- have broken new territory in advocating some kind of public funding for religious groups in the form of “charitable choice” proposals, or faith-based “partnerships” between government and religion. Bush would perhaps go even farther since he support vouchers as a way of funding sectarian schools.

This issue has also emerged at the public policy level. In 1996, Congress passed and President Clinton enthusiastically signed a Welfare Reform Act, HR 3734, which included language known as the “Charitable Choice” provision, Section 104. The law created what amounts to a new federal right that religious organizations could use in state or federal court. It stipulates that religious groups must be given equal consideration along with all other non-profit organizations when it comes to bidding on social service contracts. The law is very complex, so let me phrase it another way; a state may not deny a religious institution a contract to provide social services because of the institution’s “religious character.”

Now since the 1996 Act, there have been concerted efforts go well beyond the scope of the Welfare Reform Act, and expand the range of so-called “Charitable Choice” programs. There are also other proposals which are technically different from “Charitable Choice,” but which amount to the same thing -- the funneling of public money to sectarian groups and faith-based social outreaches. This can operate at the state and local level; for instance, here in Texas Gov. George W. Bush has made this a bellwether state in terms of social experimentation to involve religious groups in the administration and operation of social welfare programs. Many of Bush’s ideas on this subject have been influenced by Marvin Olasky, who is a University of Texas journalism professor, and it’s worth noting that Olasky suggests that perhaps we need to seriously re-think the notion of separation of church and state, and create more pro-active public policies which encourage faith-based partnerships, and aid religion.

* If you look at the program, you will notice that my talk is on “Charitable Choice, Faith-Based Partnerships and the public funding of religion.” These are different but overlapping concepts, so let me give just a few definitions here, and please keep in mind that these are very general and diffuse terms when you look at how they are used.

-- “Charitable Choice” comes from a section of that 1996 Welfare Reform Act, and it states that faith-based groups must receive equal consideration when competing with other non-profit agencies for funds to operate social services. The “Choice” comes presumably in the form of a voucher of some sort; for instance, a welfare recipient may receive a voucher for services that can be “spent” at an approved provider. Most of these programs at least give lip service to the notion that if a client objects to a religion-affiliated program, there must be a secular alternative provided. The Act and a lot of similar legislation includes token boilerplate language which states that the legislation doesn’t violate the First Amendment (that’s really for the courts, not politicians to decide...) and that the money is not to be used for religious activities. On the other hand, “charitable choice” allows these groups to maintain much of their so-called “religious character.” That includes display of religious objects, and even discrimination based on a religious litmus test in the hiring of employees.

-- “Faith-Based partnerships” constitute a wider category. The “partnership” is between religious groups and a unit of government. Charitable Choice legislation certainly benefits these partnership arrangements, but a faith-based partnership can involve state or local money, it can blend private money with government funds, it’s a more generalized term. We are tracking formal partnerships in states like New Jersey and Indiana. In Jersey, for instance, Gov. Christine Whitman has established a office of Faith-Based Partnership; it has funneled millions of dollars into collaborative projects with religious groups. This can involve grants for building and operating low cost housing projects to community health-centers. One of the things that concerns us is that these partnerships usually have a minimal amount of oversight and supervision especially when it comes to the First Amendment. For instance in Newark, we found a situation where an hold movie theater was renovated with partnership money, and it now serves as a combination church and community meeting center.

Here is where things get a bit confusing. Groups which may favor certain “partnerships” between church and state may oppose or have reservations about “charitable choice.” A lot of religious groups may be skeptical about these programs because they rightfully fear that eventually, with government money may come government oversight. Not to get ahead of myself, but this is a weapon we can use, I think, to derail a lot of these funding schemes. Churches are very resistant to the idea of opening their financial records or allowing overt intrusion into what they see as matters of internal affairs.

Part of the skepticism is also due to the fact that most congregations in this country have not collaborated closely with the government. That might strike you as odd, but it’s true. Some of the major denomination benefit heavily from government programs, but most local churches are not involved in steady, on-going social service programs. Maybe they have a canned food drive around Christmas, but very few operate 24 by 7 social service outreaches. Sometimes they join an ecumenical coalition which might have a program, but this new territory for a lot of churches.

* Another point is that Charitable Choice and to a lesser extent the whole partnership idea is something which has had to be “sold” in both the political and religious marketplace. The main proponent of this section of the Welfare Reform Act is Sen. John Ashcroft, and he called his original proposal The Personal Responsibility and Work Opportunity Reconciliation Act. This is one of the things he said about the legislation:

“In the past, many successful faith-based organizations have not participated in government programs for fear of having to compromise their religious integrity or being hobbled by excessive government regulation and intrusion. The confusing array of legal precedents has often led government officials to conclude mistakenly that constitutional law requires that faith-based organizations be excluded from the mix of private service providers, or that entities accepting government funds must forego their religious character.”

And Ashcroft went on to state:

“One of my goals in proposing the charitable choice provision was to encourage faith-based organizations to expand their involvement in the welfare reform effort by providing assurances their religious integrity would be protected...”

In fact, only part of this true. What “charitable choice” has done is muddy the waters of constitutional law even further, because the whole program sends a mixed message. On one hand their is this boilerplate language that the law is not meant to promote religion or violate the First Amendment, but on the other you have this talk about guaranteeing that the sectarian groups receiving public money don’t have to “compromise” their religious integrity.

* Under the heading of “public funding of religion,” you should know that this is already somewhat of a done-deal. Religious groups have been receiving land and money and government help for decades. When I began to really delve into the charitable choice issue, I ran across a couple of Supreme Court cases. One was in 1899, BRADFIELD v. ROBERTS, and that involved a taxpayer who sued the government for appropriating money to a charity hospital operated by a Roman Catholic order of nuns and chartered by the U.S. Congress. The court held -- and this is an example of how confusing the law has been in applying the Establishment Clause -- the court held that the secular charter rendered the hospital a secular entity regardless of who operated in.

In 1908, there was another case, QUICK BEAR v. LEUPP, and that upheld the practice of government money subsidizing the Catholic Indian Missions to operate schools for Native Americans.

Until the Welfare Reform Act, at least in theory, any religious group obtaining public funds had -- again, in theory -- to observe certain stipulations regarding how the money could be used in the context of its religious mission. And over the years, the courts (not always consistently) developed a series of tests. For instance, a religious group or religion-affiliated group like Catholic Charities could receive government money if it was not “pervasively sectarian.” The test for involved several criteria -- location near a house of worship, an abundance of religious symbols on the premises, religious discrimination in the hiring practices of the institution, the presence of religious activities and a purposeful articulation of a religious mission. So, again in theory, a religious group could qualify for public funding if it passed these criteria. It could not blend religion with the social service, it had to be primarily secular.

Religious groups began aggressively moving into the area of government-funded services in the 1970s and 1980s. Programs like the “War on Poverty” started a proliferation of projects, including so-called Community Development Block Grants. Church and other faith-based groups usually set up what amounted to a “front” or “affiliated” corporation. On paper it was distinct from the church operating it, but the membership of the Board, for instance, might overlap with the church. It often provided a job for church personnel, but all of this was legal so long as it had the veneer of engaging in a secular mission -- like handing out food, or operating a housing unit, or running a neighborhood health clinic.

As a result of these programs, many so-called “charities” that people think churches operate are, in fact, funded largely by direct and indirect government grants. Catholic Charities receive the bulk of its money from governments; other outreaches like Lutheran Social Services and various Jewish Federations also feed at the public trough to operate a variety of quasi-governmental services, but at least in theory, they have to operate under certain structural restrictions. I think it is a very legitimate question as to whether or not these programs constitute a violation of the Establishment Clause since there is an obvious benefit to the religious groups involved. As I noted, at least in theory, there are guidelines which limit the opportunity for over religious proselytizing, but the question still remains as to how much oversight there really is.

* Charitable Choice has begun to change that. So have some of the more radical interpretation of charitable choice, some of the proposals for “faith-based partnerships.” And this is one reason why, I think, as atheists and state-church separationists we need to be very concerned about this issue. All of this is radically altering the balance between government and religion in America. It is moving us in the direction of the public funding of sectarian groups. And, in my opinion, it amounts to a “religious tax” on the American people. Equally alarming is that because of these new proposals, we are at the threshold of the largest transfer of wealth in American history between the public treasury and the coffers of sectarian groups.

Let me take those points one at a time...

-- These programs radically alter the First Amendment balance between church and state because they undermine or even obliteration the notion of “establishment of religion.” And to appreciate this, we need to delve into a bit of history. A good place to begin is Thomas Jefferson’s 1786 Act for Establishing Religious Freedom. It states:

“No man shall be compelled to frequent or support any religious worship, place of ministry whatsoever, nor shall be enforced, restrained, molested or burdened in his body or goods, nor shall otherwise suffer on account of his religious opinions of belief: but that all men shall be free to profess ... their opinion in matters of religion.”

That idea was articulated in more detail in a Supreme Court decision in 1947 -- EVERSON v. BOARD OF EDUCATION OF EWING TOWNSHIP -- and reads:

“The ‘establishment of religion’ clause of the First Amendment means at least this: neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institution, whatever they may called, or whatever they may adopt to teach or practice religion. Neither a state nor the Federal government can, openly or secretly, participate in the affairs of any religious organizations or groups or vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between Church and State’ ...”

Now, Jefferson’s thoughts on this were enunciated during a dramatic debate in his home state of Virginia in 1785, when the state legislature was about to renew an imposed tax for the support of the so-called “established church.” Many of the original colonies had an official religion, an “established sect” or “church” which was supported by tax money; you often had to belong to this denomination in order to vote, hold an office of public trust or exercise other rights. Nine years earlier the Virginia Declaration of Rights drafted in part by James Madison advocated the “free exercise of religion,” but it took nearly a decade for Virginia to end its subsidy of a sectarian church. You might be familiar, in this respect, with Madison’s great “Memorial and Remonstrance” in favor of what became known as “disestablishment” of religion. Churches had already been “disestablished” in 1776 in Pennsylvania, New Jersey and Delaware; New York, Georgia and North Carolina followed suit in 1777. Connecticut took until 1818, and Massachusetts held on until 1833.

Many of the colonies -- and later, the states -- had also subsidized sectarian groups in a number of other ways, especially the granting of land. Even after official disestablishment, New York and many of the New England states persisted in aiding religion through land endowments. In Virginia, though, there was such enthusiasm for the total separation of church and state, that in 1799 and 1802, various statutes not only ended land endowment for churches, but repealed the earlier grants.

Religious groups fought the trend of disestablishment. One scheme was “incorporation,” which would have permitted churches in a particular area to levy a tax. As President, for instance, James Madison vetoed an incorporation scheme by the Episcopal Church of Alexandria, Virginia that tried to incorporate itself through the U.S. House of Representatives.

I think that most of us in this room would agree with this idea of disestablishment, and the opinions enunciated by Jefferson in the Act for Establishing Religious Freedom -- that it is morally wrong, and should be unconstitutional, to compel anyone under any circumstances to support any religion or religious activity against their will. It goes against so much of why this country was originally founded.

The irony here is that the second quote is from EVERSON v. BOARD OF EDUCATION OF EWING TOWNSHIP in 1947, and in this case the US Supreme Court upheld the constitutionality of a New Jersey program which reimbursed parents for the cost of transporting their youngsters to private religious schools. There are a number of cases where the courts have approved all sorts of public aid to religious institutions, many of them schools, for everything from textbooks to computer and technical equipment. A lot of this involves the circuitous claim that the money or aid benefits the students rather than the school or the religious denomination operating it. My point though, without careening into a whole related area of public policy, is that the courts, in my opinion, have been less than consistent in applying a strict interpretation of the First Amendment. The result has been some of the confusion that encounter today when decisions are handed down -- for instance, in the SANTA FE prayer case, and you see a complete misunderstanding of what the notion of separation of church and state really means. You also find a lot of excruciating deliberation in some of these cases. In 1989, for instance, you had the ALLEGHENY v ACLU of Pittsburgh case where the court took up the matter of religious creches on public property, and you had this torturous legal deconstruction -- the “centrality” of the Christian creche, the position of secular symbols like Christmas trees. And after the Allegheny case, Robin Murray O’Hair, who was the editor of the American Atheist Magazine, suggested that these decisions were becoming “instruction manuals” on how to circumvent the very principles they were meant to protect.

I think we risk seeing the same type of pattern today in jurisprudence involving charitable choice and public aid to religion. We have some cases like the recent one from Louisiana such as MITCHELL v. HELMS, and like the Everson case 53 years ago, you have the court applying a very loose interpretation of the Establishment Clause, and saying that certain forms of taxpayer aid to religious schools are permissible.

But “charitable choice” is the edge of an even thicker wedge, I think. And my sense is that these programs have the effect of stretching or circumventing the First Amendment to such an extend that they threaten to undermine its substance all together.

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When you look at the groups and individuals who are supporting these various kinds of programs, a number of things become obvious.

The first is for some, the goal has little or nothing to do with “choice” or “streamlining” government programs like welfare, but rather seeks to bring religion and religious groups into a more pivotal role in the society. And this is an idea which appeals to many diverse groups and for many different reasons. This accounts for why “faith-based partnerships” of some form seem to appeal to religious and political groups across the spectrum.

This attraction, though, also has its downside. One theme that you see persistently in the debate over whether religious groups should become involved in these partnerships and begin tying their ministries to the purse strings of government involves the price. There are legal concerns about whether monitoring charitable choice programs or even partnership arrangements involves “excessive entanglement.” Marvin Olasky, who is an architect of George W. Bush’s “faith based partnership” scheme in Texas, and that’s something Bush wants to franchise on a nationwide basis, is skeptical of parts of the “charitable choice” law. In a USA TODAY article, he suggested that it could lead “religious groups into temptation,” and he even admitted that unless religious groups “cheated by sliding money from one category to another,” they would violate the prohibition on the use of public funds for sectarian worship or instruction.

And this, incidentally, is one of the problems with this law and a lot of the law regarding these sorts of programs. On one hand, Ashcroft’s legislation included the gratuitous and obligatory boilerplate language regarding the separation of church and state, but on the other it clearly seeks to give religious groups wider latitude when it comes to using public money in faith-based programs.

Olasky, incidentally, suggests that we need a “multiple establishment” of religion, meaning that in his political scheme, any and all religious groups would qualify for public aid but through a series of tax credits and other schemes. Point is that the goal here is really the same -- how do we generate more money for religious groups through public policy, how do we use the taxing power of the state, how do we establish the mechanisms to involve more deeply the religious community in the social welfare project.

Let me give you some broad facts about choice, faith-based partnerships and the public funding of religion, and then close with suggestions about how and why we should work to reverse this trend.

* In the year 2000 election campaign, both candidates have come out in support of some kind of “charitable choice” and partnership scheme. I think it is no accident that this accompanies the rising tide of religious rhetoric that we have seen in this campaign with incidents like George W. Bush citing Jesus Christ as the premier philosophical influence in his life, or the preaching of Sen. Joseph Lieberman whose views on the First Amendment surely qualify him for a remedial class in American history.

During the primary races, Vice President Gore proposed a “New Partnership” between government and religious groups at a May, 1999 appearance at a Salvation Army drug rehabilitation center. He promised that if elected, “the voices of faith-based organizations will be integral to the policies set forth in my administration.” Gore had made earlier statements as far back as 1995 outlining a similar vision; he denounced what he described as “hollow secularism.” And then -- and this is typical of the double-speak that we hear whenever charitable choice or partnerships come up -- Gore praised the 1996 Welfare Reform Act and the involvement of churches in providing social services declaring: “They can do with public funds -- and without having to alter the religious character that is so often the key to their effectiveness.” He continued, “We muse ensure that there is always a high-quality secular choice available, We must continue to prohibit direct proselytizing as part of any publicly funded efforts. But we must dare to embrace faith-based approaches that advanced our shared goals as Americans.”

George Bush followed suit in late July of 1999 when he unveiled a breathtaking plan that he described as “the next bold step in welfare reform.” This pitch was made to a church audience in Indianapolis where there is a very active “faith-based partnership” called The Front Porch Alliance between the city and religious groups. Bush proposed the creation of a Federal Office of Faith-Based Action, and promised to dedicate $8 billion to this program in his first year in office. So, Bush combines the old “charitable choice” method advocated by Sen. John Ashcroft, and he would employ Marvin Olasky’s scheme of using tax credits. Bush said that the purpose “would be...to encourage Americans to give more to charity and increase the role of faith-based organizations in the fight to reduce poverty, welfare rolls, crime and other social problems.”

While these programs find support on the religious right-- Bush is an example of this, so is former Watergate crook Chuck Colson who now operates the Prison Fellowship ministry which is very active here in Texas -- there is support on the “New Democrat” and political/religious left as well. Just a few weeks we carried piece about Sen. Joseph Lieberman and his ties to the Empower America group. That organization is part of a wider nexus of foundations, think tanks and advocacy groups that can loosely characterized as the “civil society” movement, and one of the ideological linchpins in their program is to expand the role of faith-based organizations at all levels of society. This includes various “charitable choice” and “partnership programs.”

* How extensive is all of this? Public funding currently accounts for 37% of the resources that religious congregations use to deliver social services according to US News & World Report. In some denominations, the figure is higher. That amount is bound to rise as government enters into these partnerships and essentially “outsources” welfare services to private and religious organizations. One of the foundations which serves as an advocacy group for the “civil society” movement is the Center for Religion and Civic Culture. It tracked 1,354 nonprofit groups affiliated with religious organizations in the Los Angeles are alone, 500 or so deliver social services and the vast majority depend on government funding for the bulk of their outreaches.”

In New Jersey, grants ranging from $25,000 to $3.6 million are being handed out. Churches are being given money to operate homeless shelters, food pantries, schools, women’s’ center. The list goes on and on...

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Why should we oppose all of this? I think the most obvious reason is the one that is constantly being dismissed by courts and supporters of these schemes, and that is it all amounts to a massive violation of the establishment clause. There has been a gradual process of erosion going regarding how the First Amendment, and specifically cases such as LEMON v. KURTZMAN apply when it comes to funding for religious groups. You may recall that the “Lemon Test” is derived from the 1971 LEMON v. KURTZMAN case which struck down programs in Pennsylvania and Rhode Island that permitted the state to pay the salaries of teachers employed in parochial and other nonpublic schools. Justice Burger, writing for the majority tried to formulate a standard by which First Amendment cases could be evaluated, and he said:

“Three such tests may be gleaned from our cases. First, the statute must he a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster ‘an excessive government entanglement with religion.’”

It’s worth noting that William Rhenquist, the current chief justice, has led the attack on the LEMON test and attempted to challenge its historical and constitutional validity. LEMON has also been questioned by other critics like Leonard Levy, a legal scholar who points out that it leaves too much room for subjectivity, and he has pointed out that jurists have reached contradictory results with the test. But when you look at how the court has examined cases involving public aid to sectarian groups, especially schools, you find that some of these programs survive legal scrutiny just because a judge or a panel of judges make the claim “this does not result in excessive entanglement,” or they say that a program ostensibly has a “secular purpose.”

Another reason for opposing these programs is that they amount to a religious tax. I think this is simply “establishment” of religion, or many religions, and that the people pushing these proposals simply want to find ways of making an end run around the First Amendment, so they basically try to “launder” the money and still have it end up in the coffers of religious groups. As I said earlier, this puts us on the threshold of what is likely the largest transfer of wealth in American history between the public treasury and religious groups.

We should also oppose these schemes, frankly, because they threaten the integrity and independence of religious groups. This is a potential “selling point,” and it’s one reason why some faith-based organizations have a problem particularly with Charitable Choice. The Baptist Joint Committee of the SBC has expressed doubts, so have the American Baptist Churches, USA, The Rabbinical Assembly, and the United Church of Christ.

Now, this is important, though. The same groups may oppose charitable choice, but they aren’t adverse to taking government money as long as there are few if any controls. Or, they will go along with controls and end up crossing the line and violating them -- but who’s to know, how does word of that leak out if there is little or no practical oversight? And this is what adds to the confusion. For instance, the Baptist Joint Committee which is part of the Southern Baptist Convention, has opposed charitable choice, but there are other programs that also transfer money from taxpayers to religious groups in other ways, and we have to oppose them, too. You might be aware of the case in Kentucky where there is a religious corporation operated by the Baptist Church, affiliated with the SBC, which gets about half of its annual funding from the state for operating homes for juveniles -- this story is in the news because while they take public money, they fired a counselor who was identified as a lesbian. And the religious homes argue that they should have the right to discriminate in hiring practices, but they still take in about $6 million a year from the state of Kentucky. So, again, remember that charitable choice is only one way of many when it comes to subsidizing religious groups.

Let me close with a few recommendations. What can we do about all of this?

* The first step is to learn more about charitable choice and partnerships, and the other schemes that are being launched to muddle the separation of church and state and make it possible for religious groups to obtain public money.

* The second thing we encourage you to do is to become politically active and get involved in the public policy debate over these issues. For instance, you can write letters to the media and to your elected officials when these programs are proposed. Often, money is disbursed at the state and local level by boards which are made up of appointed members; you can demand a seat on that board, and this also provides you with a “listening post” as to what is going on. A lot of these programs are enacted below the news media radar screen. So, part of what we have to do here is to work harder in getting this whole issue of what I describe as “religious taxation” onto the discussion table.

* A third tactic involves was I call the “China Syndrome strategy.” You may have noticed that no nuclear power plants have been built in the last 20 years in the United States. It’s not that we don’t know how to build them, it’s not that it’s even illegal to build them, but just try putting up a nuclear power plant. Try proposing such a plan. Whether you agree with nuclear power or not, we need to borrow a page from the anti-nuclear and environmental lobby. There are so many regulations, there is so much public opposition and controversy over this issue, that at least right now it would be very difficult to put up even the safest nuclear plant on the drawing board.

I think that we have to apply this sort of activism to the charitable choice - partnership issue. One thing we can do is demand accountability and oversight. We can insist that any religious group trying to operate on public money have to live up to some very rigorous accounting procedures and oversight standards. For instance, one of the things in the new Texas case that the Civil Rights Project here has launched, is that the Jobs Partnership group -- which is a coalition of churches and businesses -- had to give clients evaluation sheets, and one of the questions involved whether the clients in the program felt any sort of pressure to change their religious beliefs. I think that we can discourage many religious groups from getting involved in these programs if we raise the bar on performance and accountability.

* Finally, we have to start playing political hardball on this, and this is not always easy. It means developing some political savvy, it means learning to negotiate your way through the public policy labyrinth. One of the things that we have found out is that you can’t expect to affect policy only when it comes time for a vote. You have to lay a foundation. Whatever the issue, you have to be involved in the very early stages when policy is being formulated, when bills are being discussed at amended at committee level (and this is whether you’re talking about the federal, or state, or even local government). Votes are often just the window dressing. Policy is usually a done-deal before votes are counted, and that’s where you have to get involved to have an impact.

This is an important issue, this whole question of the public funding of religion and religious groups. It seriously affects the precarious balance between secular institutions and sectarian religion. It is not a “sexy” issue -- we often like to focus on things like school prayer, or the Ten Commandments, and these are all important. The public funding of religion, though, is a bread-and-butter issue. It’s about money, it’s policy. And if we want to stop the wall of separation in America from becoming a mere metaphor, or a principal which politicians apologize for or work to circumvent, we should get involved.

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