Government agencies have partnered with a wide variety of religious philanthropies for many decades, and for most of that time those partnerships have garnered relatively little attention or comment. That state of affairs changed rather abruptly in 1996, with the passage of Section 104 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (“PRWORA”).
PRWORA was the first of a series of legislative acts that are usually referred to collectively as “Charitable Choice” laws. They were promoted as efforts to encourage greater numbers of religious charities (euphemistically labeled “faith based organizations[1]), to work with agencies of government to provide social services to the needy. The original charitable choice measures were buried within the massive welfare reform bill signed into law by President Clinton; however, when George W. Bush was elected President in 2000, he unveiled (with a good deal of fanfare) a new “Faith-Based Initiative” incorporating and building on charitable choice legislation. The Initiative was frequently described as a centerpiece of Bush Administration domestic policy.
Both the Bush Faith-Based Initiative and the various pieces of legislation that preceded it triggered a number of policy debates and generated significant political opposition. Those policy debates revolved around several quite disparate concerns, most notably:
- Religious Liberty. It is fair to say that most critics of charitable choice laws and the Bush Faith-Based Initiative focused upon the First Amendment issues involved. The Establishment Clause prohibits government from funding, endorsing or sponsoring religious activities. The American electorate has never reached consensus on what constitutes endorsement or sponsorship—or, for that matter, what constitutes “religion.” It should thus be no surprise that charitable choice legislation touched an already-inflamed civic nerve.
- Welfare and Poverty. The definition and design of social welfare programs, the reasons for poverty, and the definition of the “deserving poor,” have been notably contentious issues in American policy debates, for reasons deeply rooted in history and religious culture. Both welfare reform and charitable choice reinvigorated that debate and generated additional scholarship around the topic of poverty.
- Contracting Out. The practice of providing government services through third-party surrogates or intermediaries rather than through employees, often (incorrectly) called “privatization,” and the management challenges attendant to such delivery, has been at the center of acrimonious scholarly and public debate for at least the past quarter-century.
- Efficacy. Efforts to measure the effectiveness of various social programs encounter methodological difficulties and resource constraints that complicate (or preclude) program evaluation generally, and social service delivery mechanisms particularly. In the absence of reliable empirical data, ideological convictions hold sway; thus the often-repeated claim that faith-based organizations achieve better results at lower cost—a claim that has not been, and probably cannot be, empirically verified.
While the Faith-Based Initiative implicated all of these hotly debated issues, religious organizations contemplating a relationship with government need most of all to understand the parameters of the first two—church-state relationships and Americans’ deep, religiously rooted divisions over poverty and welfare.
Religious Liberty and the First Amendment
While the scope and effect of the First Amendment’s religion clauses have always been a subject of debate (especially since passage of the 14th Amendment and the application of those clauses to the states), many historians and legal scholars argue that they must be understood as a primary example of the Founders’ emphasis upon limiting the power and jurisdiction of the state. In this view, the original purpose of the religion clauses was to remove matters of religious belief and practice from the cognizance of the state (Munoz, 2003). Whatever the Founders’ actual intent, the Supreme Court’s First Amendment jurisprudence over the years has vacillated between so-called “strict separation” and “accommodation.” Each shift of interpretation has been met with satisfaction by some factions and denunciation by others. To characterize these highly politicized interpretations of the religion clauses as “contested” would be a distinct understatement; partisans view each case not just as a resolution of the matter at hand, but as a harbinger of decisions to come. When faith-based initiatives were introduced into this highly-charged political context, extravagant claims—pro and con—should have been predictable.
The contemporary application of the religion clauses rests upon an extensive jurisprudence. The genesis of much of that jurisprudence was a 1946 decision in which Justice Hugo Black summarized the Establishment Clause; in an eloquent paragraph that has since been cited in numerous cases, Black wrote:
“The Establishment Clause 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 institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.” (Everson v. Board of Education, 330 U.S. 1, 1946)
In other words, what government cannot do is benefit or burden religion itself. The mere fact that tax dollars are paid to a religious organization is not equivalent to funding religion, and a contract with a government agencies does not, without more, turn the contractor into an arm of the state for constitutional purposes. Government may constitutionally purchase services, including social services, from sectarian sources, or enter into other partnerships that involve the transfer of tax dollars to such entities so long as the funds support secular rather than religious activities. Problems only arise when government agencies contract with “pervasively sectarian” organizations, or with organizations that ignore applicable First Amendment constraints.
“Pervasively sectarian” organizations are defined by the courts as those in which the religious elements are so fundamentally interwoven into every aspect of programming that it would be impossible to separate them for purposes of ensuring that support goes only to the permissible, secular activities. The question of constitutionality does not end with the inquiry whether an institution is pervasively sectarian, however; as Lupu and Tuttle have written,
“The U.S. Supreme Court’s current interpretation of the Establishment
Clause bars government funding of a broader set of activities than that encompassed by the phrase ‘inherently religious activities.’ [The Bush Administration’s formulation for “pervasively sectarian”] The Court’s interpretation does prohibit direct government funding of activities that are ‘inherently religious,…such as religious worship, instruction or proselytization,’ but it also prohibits funding of any activity that has significant religious content, whether or not that activity is ‘inherently religious.’” (Lupu and Tuttle, 2004:73)
First Amendment issues raised by faith-based contracting can be either administrative or substantive; that is, they can arise because of the way a program is administered or conducted, or because the provisions of the law (or the nature of the program) are unconstitutional. The potential for religious bias in the bid process is one concern. Constitutional law professor Douglas Laycock has noted that “choosing someone to deliver social services is more complex than picking the low bidder on a pencil contract. How do you keep thousands of government employees, federal state and local, from discriminating on religious grounds when they award grants and contracts?” (U.S. Senate Judiciary Committee, 2001). The saliency of Professor Laycock’s concern was underscored by statements issued by Pat Robertson and others during the original debates over Section 104, warning the administration against contracts with the Nation of Islam or the Scientologists. As Richard Foltin of the American Jewish Committee noted well before the passage of Charitable Choice laws,
“It seems almost inevitable that, whatever claims may be made that contracts will be allocated on the basis of merit, in any given community the religious groups most likely to receive funds will be those associated with ‘mainstream’ faiths. And, even if the contracts are allocated on a totally objective basis, there is likely to be sharp distrust and suspicion that this is not the case.” (AJC 1990)
These warnings have proved prescient. Since 1996, a number of cases have been brought against government agencies, alleging preference for religious organizations. (In some cases, the preference was quite explicit: in American Jewish Congress v. Bernick, the challenge was to a California “solicitation for proposals” that was by its terms limited to “faith-based organizations or their nonprofit affiliates”—the state had established a religious “set aside” program. California responded to the lawsuit by settling the case, and discontinuing the program.)
There are also First Amendment issues involved in contract monitoring. The Free Exercise Clause protects religious organizations against unwarranted intrusion, and the Supreme Court has interpreted the Establishment Clause to prohibit excessive “entanglement” between government and sectarian organizations. What is “unwarranted” and what degree of supervision amounts to “entanglement” are subject to interpretation.
At the heart of all First Amendment concerns is the constitutional requirement that government funds support only secular activities. Consistent with that requirement (if somewhat under-protective of it), charitable choice laws prohibit use of tax dollars for proselytizing, and further prohibit conditioning service delivery upon participation in religious activities. However, states have limited managerial resources with which to monitor programmatic content for constitutional compliance. Middle managers hired to administer service contracts cannot be expected to recognize any but the most egregious First Amendment violations, and most have very limited time to devote to such issues. If a constitutional violation is alleged and proven, the state can be held liable (only the government can violate the Bill of Rights, because the Bill of Rights is, essentially, a list of things that government is forbidden to do), but because the laws do not define “religious organizations” or “proselytization,” state contract officers don’t get much guidance on these matters. The Welfare Information Network, a widely consulted internet resource for government officials and others who deal with welfare issues, has noted that “dialogue and ‘gut instinct’ are guiding the implementation of the ban on proselytization when contracting with federal funds.”
Inadequate monitoring resulting either from a lack of resources or a lack of sufficient constitutional competence has been highlighted by several lawsuits. In one example, early in 2005, a federal judge blocked the Bush Administration from providing future funding to an Arizona mentoring organization that injected religion into its programming. MentorKids USA used tax dollars to support worship and religious instruction; the program hired only Christians to work as mentors and required mentors to sign and adhere to a “Christian Statement of Faith” and code of conduct (New York Times, 2005). In another case, a federal magistrate ruled unconstitutional a Montana faith-based rural health program based upon its “overt religiosity” and commingling of faith and health services (Freedom from Religion Foundation v. Morh, 2004).
The challenge faced by state program managers is to ensure constitutional compliance by religious contractors without engaging in undue interference with their operations—interference that might be deemed to be “entanglement,” and thus a violation of those contractors’ First Amendment rights. As the Rev. Castanon of the United Methodist church warned in testimony to the Senate Judiciary Committee on Faith Based Solutions,
“As long as government attempts to separate what is religious from secular in entities like churches, synagogues, mosques, etc. it risks becoming excessively entangled with religion, thus advancing it or hindering religion, both clear violations of the establishment clause.” (U.S. Senate Judiciary Committee, 2001)
Managing contracts and evaluating contractor performance without intruding upon the constitutional prerogatives of the religious organization involved can be especially difficult when the faith-based provider has chosen not to form a 501(c)(3) affiliate, because monitoring and evaluation of fiscal performance will require review of books and records, and program costs may not have been segregated from other financial information. Even if there is a separate entity, some inquiry into the finances of the religious organization may be necessary if, for example, a church, synagogue or mosque is entitled under the contract to reimbursement of substantial in-kind support to the program. Analysis of the cost of providing services may include the value of volunteer time, use of church equipment and facilities, and similar accommodations. Valuing those accommodations may require more review than the faith-based organizations feels is constitutionally appropriate.
Finally, there is the requirement that public administrators provide secular alternatives for program participants who do not want a faith-based provider. Even assuming that welfare recipients know they have a right to a secular provider and are willing and able to exercise that right, an assumption that may be unwarranted (Kramer, De Vita and Finegold 2005), providing an alternative can be a challenge in more rural states, or rural areas of states. Even in urban areas, access to more than one or two providers is frequently inconvenient or impractical for welfare clients who must depend upon public transportation.
Ensuring that administrative processes conform to constitutional requirements may be more complicated than lawmakers recognize, but it is certainly possible. Much more difficult issues arise when the social programs being funded are essentially religious in nature. When government is directly contracting with faith-based drug treatment providers, or engaging in religiously-infused prison counseling, there is an almost insurmountable constitutional barrier. The nature of the dilemma is illustrated by the testimony of numerous advocates of religious interventions: they are very clear that they believe the most effective way to help drug addicts or prisoners is through religious transformation—what President Bush called “the power of faith”(Milbank, 2001). A quotation from Jack Cowley, national director of operations for The InnerChange Prison Fellowship Ministry is illustrative. Cowley explained, “We see crime as a result of sin and therefore we know that a relationship with Christ can heal people.” Unlike social services like job training and placement, day care or medical assistance—services that can be delivered in a constitutionally appropriate manner—many drug and prison programs are not merely faith-based, they are faith-infused. It is not accidental that so many prison programs are called “Ministries.”
Programs like InnerChange, Teen Challenge or House of Hope are centered on religious belief. Acceptance of Jesus is the program. Prison Fellowship Ministries, one of the most prominent of the religious prison programs, argues that crime is fundamentally a moral and spiritual problem that requires a moral and spiritual solution, and goes on to state that “Offenders do not simply need rehabilitation; they require regeneration of a sinful heart.” Operation Starting Line, another faith-based prison program, urges participants to “make the decision for Christ.” (Christian Science Monitor, 2000)
Faith-based drug treatment programs are equally focused on spiritual transformation as a methodology. Perhaps the best-known exemplar of faith-based drug treatment programs is Teen Challenge. Religious conversion is absolutely central to Teen Challenge, as the following information from its website illustrates.
“The main focus of Teen Challenge of Chattanooga, Inc. is that of being a spiritual growth center where biblical principles are taught. 80% of the respondents credited developing a personal relationship with Jesus Christ as a major influence in helping them to stay off drugs.”
A review of a study by Dr. Aaron Bicknese, also posted on the Teen Challenge web page, contains the following passage:
“Responses to survey questions by Teen Challenge graduates confirm that a commitment to Jesus Christ provided them with the moral willpower needed to overcome a wide range of serious addictions…The study found that according to responses from graduates, the nature of the commitment to Jesus Christ was crucial; it was not enough to have a vague belief in a higher power, one must commit to the Christ of the Bible.”
Successful or not (Teen Challenge’s success claims are vigorously disputed by academic critics of the program), government funding for programs having religious transformation as their central goal is by definition funding for religion, and therefore constitutionally impermissible. Other programs encompassed by the Charitable Choice initiatives may create environments within which constitutional violations are more likely to occur, but it is possible to conduct such programs in a constitutionally appropriate fashion. Funding for programs like Teen Challenge and Prison Fellowship Ministries, however, are clearly indistinguishable from funding for religion and—under decades of First Amendment jurisprudence—constitutionally prohibited.
The prohibition on direct government funding need not be fatal to the participation of all faith-intensive programs; there are alternatives to direct government contracts with such agencies that would arguably be constitutionally permissible. In Agostini v. Felton , the Court (quoting from Witters v. Washington Department of Services for the Blind) explained that in order to be constitutionally permissible, any public money earmarked for secular purposes that ultimately goes to pervasively religious institutions must do so “only as a result of the genuinely independent and private choices of individuals.” In 2002, the Supreme Court resolved a number of uncertainties about the use of vouchers when it handed down its decision in Zelman v. Simmons-Harris. That case arose out of a Cleveland, Ohio school choice experiment. The Court ruled that voucher programs passed constitutional muster if—and this is a critical if for Charitable Choice programs—the beneficiaries are provided with a genuine, meaningful choice between religious and secular programs.
A properly structured voucher program for social services allowing recipients to choose between religious and secular providers would be very likely to pass constitutional muster. (Kennedy, 2001; Minow, 1999) If public dollars have been allocated for a secular purpose (nursing home care or drug treatment, for example) and if there is a “genuinely independent and private” choice of service provider, then—just as there is no constitutionally persuasive reason to prevent an elderly person seeking nursing home care from spending her benefits in a nursing home run by her religious denomination—there should be no reason to prevent a drug-dependent teen from choosing to enroll at Teen Challenge. (This approach would not save most prison ministries, for obvious reasons.) As the Court struggles for neutrality in its application of the religion clauses, as it searches for a formulation that neither burdens nor benefits religious practice and belief, the exercise of intervening independent choice sufficient to insulate government from a charge of endorsement would seem to be the fairest way to achieve evenhandedness.
Of all the First Amendment questions raised by Charitable Choice and the Faith-Based Initiative, the issue that has been most politically contentious was the law’s explicit exemption of religious contractors from federal and state anti-discrimination laws. It has always been the case that religious organizations’ free exercise rights entitle them to an exemption from civil rights laws to the extent that such laws conflict with their religious beliefs.[1] In most states, however, this exemption has never applied to programs funded by government contracts. Those states acknowledge that religious organizations have a First Amendment right to hire and fire people in a manner consistent with their religious principles when they are spending their own money; they draw the line when use of government dollars is involved. The argument is that religious organizations don’t have to take government money, and if they choose to do so, they should be held to the same rules that apply to other bidders. Proponents of greater faith-based participation in government programs believe this is discriminatory. They see the religious provider’s “freedom to select employees dedicated to their faith-based mission” as critical to the protection of institutional integrity. (Esbeck, Carlson-Theis and Sider, 2004).
Although the law on point remains scanty to nonexistent, the Supreme Court’s unanimous decision in Norwood v. Harrison may offer guidance to religious organizations debating whether contracting with government will require a change in hiring practices. In Norwood, the Court considered the constitutionality of Mississippi’s practice of “lending” school textbooks to private schools that practiced racial discrimination, and ruled that the Constitution bars action by the state that aids private discrimination. The Court held that it is “axiomatic that a state may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish” (Norwood, 1973: 465). Proponents of the charitable choice exemption dismiss Norwood because “Eradication of racially segregated public schools is a duty of the state…To permit faith-based organizations to staff on a religious basis undercuts no duty of the state to ensure that it refrain from religious discrimination.” (Esbeck, Carlson-Theis and Sider, 2004:38).
As Melissa Rogers has noted, however, it is more difficult to dismiss Dodge v. Salvation Army, decided in 1989. In that case,
“[T]he only court to have squarely faced this issue so far ruled in an unreported decision that, when an employment position within the religious organization was funded ‘substantially, if not exclusively’ by the government, ‘allowing the [religious organization] to choose the person to fill or maintain the position based on religious preference clearly has the effect of advancing religion, and is unconstitutional.” (Rogers 2005)
Given the paucity of precedent on this point, a 2010 settlement in Lown v. Salvation Army may suggest where the weight of legal opinion lies. The suit was filed in 2004, and asserted that the Salvation Army—a long-time partner in government anti-poverty programs—had ‘reinvigorated’ the religious content of its programming and made unlawful changes to its employment practices. According to the plaintiffs, the newly revised Salvation Army employment forms ask applicants to list the last ten years of church affiliations; require that they waive confidentiality of private communications with clergy and authorize disclosure of those communications to the Salvation Army; and ask for explicit commitments to support the organization’s religious mission and preach the gospel of Jesus Christ. The complaint also alleged that the work environment had become “religiously hostile” to employees who believe they are being asked to breach their professional obligations to teenagers at risk for HIV, sexually-transmitted diseases, or pregnancy (Lown, 2004). In February, 2010, the government conceded the impropriety of funding employees subject to such terms, and settled the case on terms demanded by the plaintiffs. While settlements are not precedents, they do signal what lawyers on a case believe would be the likely outcome of litigation.
Poverty and Welfare Policy
A religious charity contemplating a partnership with government would be well advised to understand the contending influences on poverty policy and the theological and political roots of the very different perspectives they will encounter.
Welfare policy disputes have an even longer pedigree than does the modern idea of religious liberty in a limited state. The origins of our contemporary debates over government-funded social welfare programs can be traced at least as far back as 1349, the year England enacted the Statute of Laborers. That act prohibited citizens from giving alms, or charity, to those who had the ability to work—that is, to “sturdy beggars” (Handler and Hasenfeld 1997). This first attempt to deal with what we would later call welfare was not about providing assistance; it was about forcing people to work. Not until 1601, in the reign of Elizabeth I, would a tax be levied to provide material assistance to the poor. The Elizabethan Poor Law established three categories of needy people: children without parents (or at least without parents who could care for them adequately); the able-bodied; and the incapacitated, helpless or “worthy” poor. Vagrants, or able-bodied persons who refused to work could be “committed to a house of correction, whipped, branded put in pillories and stoned, or even put to death”(Indiana Dept. of Public Welfare 1985). Help—however meager—was limited to the deserving, or “worthy” poor.
The Elizabethan Poor Law incorporated a moral and theological distinction between the “deserving” and “undeserving” poor that would eventually be carried to the British colonies and reproduced in the laws of virtually all American states. It was the model that settlers brought to the New World; it was the approach adopted by the original thirteen colonies, and as people moved west, it was the approach incorporated in the Ordinance of 1787, which prescribed rules for governing the Northwest Territory. To a significant extent, the distinction between the deserving and undeserving poor, the “categorizing” of people needing assistance, and the emphasis upon work have remained the primary framework through which the general public and federal and state policymakers view social welfare and poverty issues today.
This paradigm found considerable support in religion. The belief that poverty is evidence of divine disapproval—that virtue is rewarded by material success—was held in one form or another by a number of the early Protestants who settled the colonies; it is a theological perspective that has continued to influence American law and culture. It wasn’t until the Great Depression that blaming the poor for their own poverty became a minority position, and American lawmakers widely acknowledged the need for some sort of social safety net. Even then, it would be a mistake to assume that the dislocations of the 1930’s or the passage of New Deal legislation changed Americans’ deeply-rooted beliefs about poverty, welfare, or their own history of self-reliance. As social historian Stephanie Coontz has written, “Most Americans agree that prior to federal ‘interference’ in the 1930’s, the self-reliant family was the standard social unit of our society. Dependencies used to be cared for within the ‘natural family economy’ and even today the healthiest families ‘stand on their own two feet.’” (Coontz 1992, 69)
Coontz and other scholars have demonstrated that this widely-held belief in self-sufficiency is inconsistent with the reality of the American experience. Pioneer families owed their very existence to massive federal land grants and state economic investment in new lands. In the early twentieth century, western populations depended on government construction of dams and federally subsidized irrigation projects. During the Depression, government electrification projects and other government subsidies were critical to the survival of the family farm. In the 1950’s, Coontz notes, suburban families were “more dependent on government handouts than any so-called ‘underclass’ in recent U.S. history,” (Coontz 76) thanks to the GI Bill and the National Defense Education Act that subsidized the educations of a whole generation; and to the Federal Housing Authority and the Veterans’ Administration, which allowed Americans to purchase homes with artificially low down-payments and subsidized interest rates. Meanwhile, billions of dollars of government-financed inventions, production processes, and research enabled businesses to flourish, and by the 1970s, Social Security had virtually wiped out the historic tendency for the elderly to be the poorest sector of the population.
Of course, many, if not most, of these programs benefited the middle and upper classes rather than those in need. Even between 1965 and 1971, during the height of Great Society anti-poverty initiatives, 75 percent of American social welfare dollars went to the non-poor. Nevertheless, despite the lessons of the Depression and the documented, pervasive reliance of middle and upper-income families on a wide variety of government assistance programs, acceptance of poor relief or welfare continues to be viewed by many Americans as an entirely different matter, and as evidence of a moral or character deficit. Neither welfare reform nor charitable choice can be understood without recognizing both the persistence and widespread acceptance of that perspective, and the continuing vitality of religious doctrines that support and inform it. Opposition to those measures, on the other hand, cannot be understood without recognition of equally significant, countervailing political and religious influences that have argued for social justice and greater governmental responsibility for the poor. As Mary Jo Bane and Brent Coffin have eloquently reminded us,
“Indeed, these great religious traditions differ in their beliefs about ultimate reality, their approaches to community, and the types of institutions they foster. Yet for all their enduring differences, these traditions share central commitments: to the equal worth and sacredness of all men and women; to recognizing our shared vulnerability as finite creatures; and to our common needs for nurture and support to achieve our potential as creative participants in family, community and society. The Torah, Bible and Koran especially stress that the covenant community requires of its members a special obligation to the poor and vulnerable; by their treatment, the character of the entire community is measured.” (Bane and Coffin 2004)
While many religious communities believe that charitable works should be done through non-governmental channels, many others have insisted that working for social justice and sharing responsibility for those less fortunate must be a shared obligation of religious communities and government institutions. As with so many other issues in a diverse society, there has been no one “religious” or “faith-based” approach to social welfare issues. While many religions can point to a long history of outreach to the needy, both the nature and the extent of those efforts have reflected significant differences rooted in both doctrine and history.
The religious roots of Americans’ historic approach to the (ostensibly) secular issue of poverty give evidence of the continuing salience of a Calvinist worldview that has shaped a distinctively Protestant approach to charitable and voluntary activities.
“In the nineteenth century, Catholics and Protestants who may all have agreed with the abstract proposition that ‘true Christian stewards’ would share their talents and material resources with others to benefit society nevertheless had quite different perspectives on the reasons for stewardship, and significantly different beliefs about what such stewardship entailed. Protestants generally believed that they would be saved through faith, not works; accordingly, they tended to see acts of benevolence not as a way to earn salvation, but as a way to manifest the depth of their faith (Oates 2003) and to evidence their likely status as elect. Catholics, on the other hand, had been taught that salvation rested on good works as well as faith, and that charity was a religious duty incumbent upon all believers. For them, charitable works were a way to earn salvation, not evidence of its probability.” (Kennedy 2007)
The doctrine of original sin has also played a role in shaping cultural attitudes toward poverty. Together, these doctrines have encouraged a belief that the poor are suffering for a reason, and that assisting them—helping them escape poverty—would thwart God’s will. As one historian has put it, “Poverty was not understood as a problem to be fixed. It was a spiritual condition. Work-houses weren’t supposed to help children prepare for life; they were supposed to save souls.” (Bigelow 2005)
These attitudes were never universally held; they co-existed, however uneasily, with early evangelical beliefs about the importance of covenant and the duty citizens owe each other. Furthermore, as America experienced industrialization and other social changes giving rise to new problems, including increases in alcoholism and prostitution, many Protestant denominations recognized a moral imperative to act. These competing theological and economic positions would later harden into the opposition philosophies we now call Social Darwinism and the Social Gospel. An understanding of those very different worldviews is critical to an understanding of contemporary arguments for and against charitable choice.
The two names most commonly associated with Social Darwinism are Herbert Spencer and William Graham Sumner. Spencer was an early and enthusiastic supporter of Darwin, but he took it a step further; he adapted—or appropriated—Darwin’s theory of natural selection to justify an economic position. As Spencer saw it,
“Blind to the fact that under the natural order of things society is constantly excreting its unhealthy, imbecile, slow, vacillating faithless members, these unthinking, though well-meaning, men advocate an interference which not only stops the purifying process, but even increases the vitiation—absolutely encourages the multiplication of the reckless and incompetent by offering them an unfailing provision, and discourages the multiplication of the competent and provident by heightening the difficulty of maintaining a family.” (Spencer, quoted in Walsh, 2000:6)
Similar sentiments led Americans like William Graham Sumner to dismiss any moral claim on society’s resources by those less fortunate.
“But the weak who constantly arouse the pity of humanitarians and philanthropists are the shiftless, the imprudent, the negligent, the impractical, and the inefficient, or they are the idle, the intemperate, the extravagant and the vicious. Now the troubles of these persons are constantly forced upon public attention, as if they and their interests deserved especial consideration, and a great portion of all organized and unorganized effort for the common welfare consists in attempts to relieve these classes of people….Now who is the Forgotten Man? He is the simple, honest laborer, ready to earn his living by productive work.” (Sumner, quoted in Walsh, 2001:7)
While later social scientists would conclude that the biological theory of evolution cannot and should not provide a framework for social policy, evangelicals like William Jennings Bryan saw Spencer and Sumner’s philosophy as the logical outgrowth of Darwinian biology, and a refutation of the essential philosophy of Jesus’ Sermon on the Mount. Bryan’s rejection of the biological theory was largely motivated by his conviction that its grounding in natural selection would be used exactly as Sumner and Spencer were using it—to justify harsh and punitive social policies and to undercut the importance of government efforts to address systemic causes of poverty.
The social problems and misery accompanying the dislocations of industrialization evoked a very different response from clergymen like Washington Gladden and Walter Rauschenberg. Rather than biblical justifications for poverty, they stressed the biblical injunction that made man his brother’s keeper. They criticized excesses of capitalism and competition and worked to ameliorate the causes and effects of poverty. Their “social gospel” rejected the notion that the poor were solely responsible for their own misery, and they championed efforts by government to address the structural and systemic forces that prevented the poor from improving their lot. Rauschenberg, in particular, was a pivotal figure in creating and promulgating the Social Gospel; his books—Christianity and the Social Crisis and Christianizing the Social Order—were broadly influential among mainstream Protestants, and enunciated a philosophy that fit well with the missions of the numerous voluntary organizations being formed as a response to the social problems of the day.
“Rauschenbusch despaired of individualized attempts at social service because they perpetuated the corrupt social system. Sin was both individual and corporate. Saving souls was important, but so was transforming the social order.” (Leonard, 1988: 249)
Curtis has described the social gospel as the religious expression of progressivism in the early twentieth century, and as a departure from the nineteenth-century Protestant emphasis on individualism. “In place of unbridled competition, individual responsibility for success, and government policies of laissez faire, social gospelers proposed cooperation, social responsibility for justice, and an interventionist welfare state.” (2001) The Social Gospel thus reflected a significant shift in Protestant theology. For those who accepted the social gospel, salvation became a communal obligation rather than an individual one. It required a concerted attack on the “poverty, vice and filth that prevented many Americans from staying on the road to redemption” (Curtis, 2001).
The God of the social gospel was not the angry and judgmental God of the Puritans. This God was “immanent,” a loving, parental deity who had endowed mankind with moral agency which was to be used to improve the world and make it suitable for His kingdom. This view of God, and man’s relationship to Him, produced a further shift away from concern with the afterlife, and toward much more earthly concerns with the evils of poverty, depravity and injustice. Those who believed in the social gospel rejected the view of the poor held by the social Darwinists; for many of them, their personal experiences and volunteer work had convinced them that individual efforts alone were insufficient to change the conditions of poverty. Accordingly, they de-emphasized individual salvation in favor of what might be called “social salvation” or social justice, and the importance of improving the lot of the communities they lived in. Perhaps the most significant element of the social gospel was its emphasis on the importance of institutional structures in thwarting or enabling individual efforts. In sharp distinction to the social Darwinists, adherents of the social gospel emphasized structural or systemic solutions over personal transformation, and lobbied for communal and governmental solutions to social problems.
The theological and philosophical divide between those who adhered to the Social Gospel and those whose roots remain in Social Darwinism continues to inform—and inflame—policy disputes over welfare policy in the 21st Century. It would be misleading, however, to suggest that welfare policy disputes are simply contemporary manifestations of earlier theological debates. Charitable choice and the President’s Faith-Based Initiative are part of a movement that can be broadly described (depending upon the political viewpoint of the narrator) as either a backlash against, or a correction to, the creation of what has been called the “administrative state” during the latter half of the twentieth century. That changing governmental landscape was itself a response to rapid, dramatic changes in American society, especially the growth both of actual diversity and (thanks to communications technology) awareness of it. The rapidity of technological innovation, the increased mobility of populations, the nationalization and globalization of legal and economic systems, and the seemingly inexorable growth of government have all contributed to a sharpening of the tensions between America’s historic individualism and the growing interdependence of its citizens—not to mention the historic religious debate about individual versus social and governmental responsibility.
To all of these changes we must add the weakening of Protestantism’s hegemony over American culture. America has become steadily more diverse, and there are now many more religious voices offering solutions to the question “what shall be done about the poor?” Catholicism teaches that salvation rests on good works as well as faith, and that collective giving is preferable to individual charity because special spiritual benefits accrue to those who unite with fellow believers in acts of charity and social compassion. Catholic theology insists that the needs of the poor take priority among the church’s good works, and that teaching has characterized Catholic charity. That same theology has motivated Catholic leaders to support governmental social welfare provision. Jews have never constituted more than a small percentage of the U.S. population, but Judaism has contributed disproportionately to the broader American culture, especially in the areas of philanthropy and social justice. Tzedakah requires that Jews give aid and assistance to the poor and elderly, and that they support other worthy causes. In Judaism, the highest form of giving is that which enables a person to become self-sufficient. Thus, many of the earliest Jewish social service agencies offered language, financial, and job assistance so that immigrants would be able to provide for themselves, and, in turn, offer assistance to other immigrants who arrived after them. (There was also a prudential motivation for concentrating early philanthropic efforts on needs within the Jewish community itself, growing out of culturally internalized lessons of Jewish history: if the Jews did not take care of their own poor and elderly, no one else would. And if the Jews were seen as a burden to others, if they were unable either to sustain themselves or to contribute to the larger society, they would suffer discrimination and possibly even expulsion.)
More recent waves of immigration have added other religious traditions—notably Islamic and Asian—to the American philanthropic landscape, and the beliefs of those immigrants will undoubtedly continue to shape and reshape national attitudes about poverty, charity and the obligation of the state, just as throughout American history, religious beliefs have motivated charitable giving and prompted (sometimes radical) moral and political movements for social change and equal justice. (Skopol 2000)
Aside from the particulars of their charitable convictions, it is important to recognize how many of America’s original religious settlers brought with them not only distinctive theological beliefs about poverty and misfortune, but their own historical reasons to distrust the power and motives of government. From the earliest days of the country, the “dissenting” churches that had come to America to find religious liberty were skeptical of governmental involvement with religion, and fearful of state overreaching. From early settlers like the Baptists to later groups like the Jews, many of America’s religious communities have been insistent upon the separation of church and state, and fiercely protective of their religious autonomy. Those beliefs persist, and continue to inform opposition to the acceptance of government dollars for faith-based social service programs, even while many religiously affiliated programs, including many operated under the auspices of those same religious groups, have increasingly come to depend upon those dollars.
The Lay of the Land: Implementing Charitable Choice
The religious beliefs and constitutional constraints described above have constituted the framework within which partnerships between religious charities and government agencies have operated. And they have operated for a very long time. Whatever else one might say about charitable choice and the Faith-Based Initiative, the idea of partnerships between religious philanthropies and government was anything but new.
As we have seen, large-scale government efforts to combat poverty did not exist before the Depression; by that time, many religious organizations had been providing services to the indigent and the elderly for decades. Government partnerships with established charitable institutions that had been providing social welfare were thus inevitable, and were—and have remained—largely uncontroversial. Most—although certainly not all—of the long-time religious social service providers are separately incorporated nonprofit charitable organizations like Catholic Charities, Lutheran Social Services and Jewish Family Services that offer both employment and assistance on a professional, nondiscriminatory basis. Often, too, the structures of government programs have operated to minimize concerns about church-state violations. In many cases, government funds follow the individuals entitled to the benefits involved. For example, Medicaid patients may choose a nursing home or hospital, which then receives payment from the government. While these and similar benefits are not generally referred to as vouchers, they are functionally indistinguishable from vouchers, and they have long been an accepted part of the social service landscape. Direct contracts and other collaborations between government units and pervasively sectarian organizations, including individual congregations, have been less common, but far from unusual.
Government financial support for religiously affiliated organizations providing social services has thus been a longstanding feature of most public welfare programs. In a 1969 study of findings from a 1965 survey of 406 sectarian agencies in 21 states, Bernard J. Coughlin reported that 70 percent of them were involved in some type of purchase of service contract with the government. A 1982 study by F. Ellen Netting, focusing on government funding of Protestant social service agencies in one Midwestern city, found that some agencies received between 60 and 80 percent of their support from the government, and that approximately half of their combined budgets were government-financed. As far back as 1994, government funding accounted for 65 percent of the nearly two-billion-dollar annual budget of Catholic Charities USA, and 75 percent of the revenues of the Jewish Board of Family and Children’s Services. These and similar studies provide evidence that—whatever the merits or flaws of current faith-based initiatives—it is simply inaccurate to suggest that government partnerships with religious providers are something new.
Furthermore, in contrast to the frequent challenges to public religious displays, and persistent, vocal opposition to public funding for religious elementary and secondary schools, this longstanding allocation of public tax dollars to religious social services providers has gone virtually unchallenged. There are two major Supreme Court precedents: Bradford v. Roberts, an 1899 case permitting the flow of public dollars to religious hospitals, and Bowen v. Kendrick, decided in 1988. Bowen involved an Establishment Clause challenge to the Adolescent Family Life Act. The Family Life Act provided funding to a variety of local organizations, including religious organizations, to support counseling of teenagers about premarital sex and teenage pregnancy. The Court in Bowen acknowledged a danger that counseling services might be delivered by sectarian groups in a manner that violated the Establishment Clause, but declined to find the Act facially unconstitutional merely because that danger existed. According to the majority, a successful challenge would have to rest upon the particulars of a specific program; the mere inclusion of religious contractors in the program was held not to constitute a per se Establishment Clause violation. Funding for religiously affiliated schools, on the other hand, has generated a significant jurisprudence, and many efforts to direct public funds to such schools have been struck down.
Despite this seeming inconsistency between the cases involving social welfare services and those involving schools, the courts have actually been quite consistent—and virtually unanimous—in their insistence that, whatever else the Establishment Clause may mean, it absolutely forbids government funding of religion. What the case law in both areas has also recognized is that mere payment of tax dollars to a religious organization is not the same thing as funding religion. Historically, the relative lack of litigation over government support for religious social services can be explained at least in part by the fact that the secular nature of the services involved is so readily apparent. Hospitals and nursing homes are providing medical care; day care facilities are supervising children; job placement counselors, drug treatment facilities and the like have secular counterparts engaged in providing similar, if not identical, programs. While economists remind us that dollars are fungible, so that support for one activity frees up funds that can then be used elsewhere, it is relatively simple to calculate the costs of nursing services or child care, and reasonable to argue that if payment of government dollars is only sufficient to cover those determinate costs, public money is subsidizing only the secular activity. (In the school context, where litigation of First Amendment issues has been copious, direct funding programs that have passed constitutional muster have generally been those involving an identifiably secular benefit available to all citizens—immunization, speech and hearing testing, transportation—where exclusion of children attending religious schools was deemed to burden the free exercise rights of parents opting for religious education.)
For many years, these legal and constitutional issues were salient primarily to large, sophisticated religiously-affiliated providers and their lawyers. Their current prominence is in large measure a result of the growth of American government during the past century, and more recently, the exponential growth of government contracting. Not only has the scope of government action increased at all levels, but the mechanisms through which government addresses public problems and delivers public services have changed radically. The issues raised by this fundamental shift in the way government does business are central to the concerns over charitable choice and government partnerships with religious philanthropies; the shift has dramatically increased the visibility of such partnership arrangements.
As noted, government agencies in the United States have paid religious organizations to house, clothe and counsel the poor since the earliest days of state involvement in social welfare programs, and the religious organizations providing those government-financed social services have ranged from 501(c) 3 affiliates of denominational entities, like Catholic Charities and Lutheran Social Services, to “pervasively sectarian” organizations like the Salvation Army, to individual congregations. In fact, many proponents of “Charitable Choice” legislation and President Bush’s “Faith-Based Initiative” describe those policies as simply an attempt to level a playing field that already includes significant numbers of religious players. They argue that fear of overzealous application of the First Amendment has kept some smaller religious providers from bidding on government contracts, and characterize the legislation as merely an effort to ensure that government officials do not inappropriately require participating “faith-based” contractors to diminish or eliminate religious components of their services. Whatever the merits of that claim, the fact is that public tax dollars are routinely used to purchase social services from sectarian providers—and have been so used for decades.
The passage of charitable choice laws thus built upon a substantial history of government cooperation with religious philanthropic organizations. But those laws also introduced a number of questions that—at least at this writing—remain unanswered. Some of those questions are overarching, philosophical ones: what are the dynamics—historical, ideological—of this debate; what does it tell us about the ongoing tensions of democratic governance and policymaking for a diverse citizenry? Other questions focus upon more pragmatic and immediate concerns, many of which were raised by ambiguities in the legislation: what do these laws require of government managers? How will charitable choice and the Faith-Based Initiative affect welfare clients and services? How do the First Amendment and other constitutional provisions affect program administration? The broad issues—and some of the specific questions raised by the legislation—can be categorized as follows:
- Definitional issues. Government has contracted with religious organizations ever since it has provided social services. Furthermore, there are enormous variations among religious organizations. How are the faith organizations targeted by these measures different from Catholic Charities, Lutheran Social Services, the Salvation Army, and government’s many other long-time religious partners? What are “faith-based” organizations, and how do they differ from other nonprofit organizations? What do we mean by “programmatic success” and “efficacy”?
- Funding Issues. The effort to recruit new faith partners was not accompanied by additional funding for social services. To the contrary, the amount of money budgeted for social services declined. With no new money, have charitable choice laws simply shifted funds from one set of religious providers to another—presumably, from government’s traditional religious partners (who generally operate in accordance with applicable professional norms) to providers more focused upon the “personal transformation” of clients? (Thus far, these laws have had little impact upon the identity of religiously-affiliated contractors; whether that changes is an open question.) What will happen to small, grass-roots faith-based organizations if diminished public resources make funding streams unreliable? Will government funding affect the character or mission of small religious organizations new to the contracting regime? If so, how?
- Constitutional issues. The First Amendment does not prevent government from doing business with faith organizations, but that doesn’t mean that any program run by a religious provider will pass constitutional muster. There is a constitutionally significant distinction between programs that are offered by a religious provider or in a religious setting, and programs in which religious observance or dogma are central to service delivery. What mechanisms are proposed to ensure that services are delivered in a constitutionally appropriate manner? What is the capacity of public managers to ensure constitutional accountability, and what resources are available to them for monitoring compliance? Can we avoid government favoritism for certain religious providers over others, or privileging of either religious or secular providers? How can we ensure constitutional accountability?
- Evidence issues. John DiIlio, the first Director of the White House Office of Faith-Based and Community Initiatives, readily admitted the absence of credible research supporting the assertion that religious providers are more effective, quoting the academic adage that “the plural of anecdote is not data.” DiIlio expressed his hope that future studies would provide answers to such questions. One can recognize that many faith-based and religious organizations do important, often exemplary, work without taking that indisputable fact as evidence that religious organizations as a category are more effective than secular ones. At the time the White House implemented its Initiative, no evidence for such an assertion existed. (It is also worth noting that religious sociologists have criticized this emphasis upon efficacy, suggesting that to focus on religion’s “effectiveness” is to profoundly misunderstand the nature of religion—that such instrumental approaches to religion are self-defeating. As Neibuhr has reminded us (Neibuhr 193:12), the instrumental value of faith for society is dependent upon faith’s conviction that it has more than instrumental value (Althauser, 1990)).
- Management Issues. With the passage of charitable choice laws, the public officials whose job it is to manage faith-based contracts were faced with many ambiguities and unanswered questions. The question for them was not, for example, whether government should partner with religious organizations to provide social services. It always has, and undoubtedly always will. The question is “under what circumstances are such partnerships appropriate and when they are, how should they be structured and monitored?” Similarly, the question is not whether, in the abstract, religious programs or secular approaches are preferable. The question for government program managers is “what organizational characteristics are most likely to predict successful program delivery, and how can I determine which of the bidders for this contract possesses those characteristics?” “How will I define and measure accountability?” Complicating these management questions is the reality that in a federalist system, different states approach implementation of Charitable Choice differently. Those differences will also pose management challenges. Finally, contracting with government presents nonprofit managers with challenges of their own: managing cash-flow and absorbing transaction costs; responding to government monitoring and reporting requirements; and compliance with constitutional restrictions and government program regulations. These management challenges can be particularly onerous for small organizations unaccustomed to a contracting environment.
Making a Decision to Participate
At some point, the small grass-roots religious charities and religious congregations that are the ostensible targets of charitable choice laws must decide whether entering into a partnership or contract with a government agency is right for them. A review of First Amendment philosophy and jurisprudence, an understanding of where they and others with whom they will be working fall on the spectrum of theological approaches to poverty, and a familiarity with the history of American social welfare partnerships will inform that question, but it won’t answer it. The conceptual grounding is necessary, but not sufficient to answer the numerous practical questions that should be identified and addressed before a final decision is made.
In the wake of President Bush’s announcement of his “Faith-Based Initiative,” I led a team of researchers in an exploration of that Initiative and the charitable choice legislation on which it was based. One of the products of our research was a video for use by government agencies and congregations considering entry into a new faith-based partnership. In the video, we identified questions that prospective partners should be prepared to answer in order to decide whether the proposed collaboration is likely to be mutually beneficial. Those questions grew out of interviews with dozens of people in the religious community who have “been there”—agency directors, faith leaders and constitutional experts who have managed and studied effective partnerships as well as those that have failed. Those interviews suggested three areas for careful consideration: capacity, commitment and constitutionality. These questions are particularly important for congregations considering a first-time contract with a government agency.
By Capacity, we meant an evaluation of the assets each partner brings to the collaboration: personnel, money, expertise, facilities. By Commitment, we meant willingness based upon a clear understanding of what such a partnership entails and the responsibilities the partners are assuming. And by Constitutionality, we meant affirmative answers to two important questions: do both partners understand what the law requires, and are they prepared to abide by those requirements?
Capacity. Assessing capacity requires calculating how many people will be required to manage and staff the proposed program, and whether those persons will be paid staff, volunteers, or a combination. Research suggests that congregations tend to be most successful with programs that are short-term and finite: It is one thing to collect food for a food pantry; quite another to run a daily meals program. The average congregation is 75 people; the average annual congregational budget is $100,000 (Bane, 2002). If an average congregation is proposing to enter a contract to provide social services, it is likely that those services will depend heavily on volunteers. How dependable will those volunteers be during sustained program periods? Will they be diverted from other congregational tasks? If so, who will take over those jobs? Do the volunteers have the experience and background necessary to provide the services in question? If the congregation is counting heavily on a particular volunteer, does it have a plan for what would happen if she falls ill or moves or dies? Does it have a back-up? The personnel challenge was summed up by Rev. Odell Cleveland, who runs the very successful Welfare Reform Liaison Project in North Carolina:
“When you talk about replicating a program, you have to have compassion and expertise. Ninety-seven percent of my staff have degrees; some of them advanced degrees. It’s more than sister so-and-so who’s willing to help. People have to be trained. People have to be educated and trained and know what they’re dealing with, because you can have all the good intentions in the world, but if you are not trained and qualified to handle these situations, if you’re not careful, you can do more harm than good.” (Cleveland 2002)
Capacity also includes financial considerations. How will this program be funded? Will all the money come from the government? If so, what will happen if the contract isn’t renewed? What about cash flow? In many states, payment is only made when a desired outcome has occurred: when the client is placed in a job, or leaves welfare, or achieves whatever the program’s goal may be. If services must be provided for several months before payment is received, can the congregation finance services during that time?
“Transaction costs” are an often overlooked capacity issue, and can come as a real shock to small programs that previously did not have to cope with the accounting and paperwork demands of government agencies. These are not arbitrary or unwarranted requirements; if a government agency is committing tax dollars to a program, it has an obligation to ensure that the money is being properly spent. However, that entails periodic audits, site visits, and paperwork that most congregations have not previously encountered. Does the congregation have the accountants, bookkeepers and clerical support needed to comply? Have the costs of compliance been factored in to the contract amount? Will resources have to be diverted from client service to compliance?
The final capacity question concerns program size. Will the contract require an expansion of services? If so, is the expansion feasible? Some social scientists have suggested that the virtue of many grass-roots religious programs—the reason programs are successful—is their small scale and ability to engage clients personally. If the program must grow in order to comply with the government contract, will it lose the immediacy that made it work?
Commitment. The primary mission of a congregation is ministry. Before a congregation contracts to provide social services, it needs to consider whether the contract will divert attention and resources from that primary mission. A corollary question is whether contracting with government will mute the congregation’s prophetic voice. As the Rev. John Buehrens of the Unitarian Universalist Association has warned,
“If you’re on the government dole, your independence as a servant of God who is called to comfort the afflicted, yes, but also to afflict the comfortable and also to speak the moral word to government, becomes diminished. That’s a great danger. It’s a spiritual danger.” (Buehrens, 2002)
There are practical questions as well: If a preschool program is noisy and rambunctious, will members of the congregation be annoyed? If the meals program increases wear and tear on the church kitchen, will congregants balk at the expense of maintenance and repair? If the program serves people very different from those in the congregation—much poorer people, those from different racial and ethnic backgrounds, immigrants, ex-convicts—will the congregation still support the program?
Commitment can be evaluated by asking these questions: what is the congregation’s goal? Is it congruent with the government agency’s goal? Is the congregation prepared for the inconvenience and disruption that may accompany the program? And perhaps most important, are the expectations on both sides of the partnership, governmental and congregational, clear?
Constitutionality. Questions of capacity and commitment apply to all proposed government contractors, secular or faith-based. But the First Amendment creates added issues for religious contractors—we have touched on only a few of those issues in this chapter. Congregations considering a government contract must be prepared to learn about and live within the constitutional rules, whether or not it agrees with them. As previously explained, the First Amendment prohibits the use of tax dollars to support religious organizations or for religious purposes. However, what constitutes support, or a religious purpose, is often unclear. The Supreme Court has never ruled that government may not purchase secular goods or services from religious entities, and to take such a position would raise serious equal protection and free exercise concerns. Historically, however, the Court has refused to allow the flow of direct government aid (as opposed to vouchers) to organizations that are “pervasively sectarian.” Congregations, by definition, are pervasively sectarian. That makes it extremely important that the congregation be able to identify the secular service being provided, and the means by which its secular nature will be assured.
In an effort to determine whether congregational leaders are aware of the constitutional constraints applicable to faith-based partnerships, my research team surveyed congregations in South Bend, Indiana, a community large and diverse enough to be representative, but small enough to be manageable. We constructed a simple, ten-question instrument, testing for very basic constitutional principles.
The results supported one clear conclusion: Large numbers of congregational leaders do not know what they need to know if they are to do business with government. Of 103 responses, seventy-five disagreed with the statement “The First Amendment and other provisions of the Bill of Rights apply only to government action.” Understanding that the Bill of Rights limits only government action is absolutely basic to understanding the operation of American constitutional principles, including—importantly—the Establishment Clause. Worse, seventy respondents disagreed with the statement “If a congregation has a contract with government to provide services, the congregation may not include religious instruction or prayer as part of the services funded under the contract.” Those were the most troubling responses, but forty-nine respondents (almost half) also disagreed with the statement “The First Amendment’s separation of church and state means that tax dollars cannot be used to fund religion or religious expression.” (In addition to a wrong response, several respondents wrote marginal notes to the effect that separation of church and state is not constitutionally required, and that they would feel no compunction about using tax dollars to save souls. Two offered their opinion that “separation of church and state is an invention of the ACLU.”)
It bears emphasizing again that there is no constitutional reason that congregations cannot partner with government; the issue is how such partnerships are conducted. Existing law is very clear about some things: Government can buy food for the needy from a congregation, but the congregation cannot require recipients to pray before eating it. Government can rent beds in a faith-based homeless shelter, but use of those beds cannot be conditioned upon attendance at bible-study. Congregations needn’t take the crucifix off the wall, or hide the bibles, but they cannot use tax dollars to purchase those—or other—religious items. Failure to understand these rules (or unwillingness to abide by them) is a danger signal for any government partnership.
Before a small religious charity or congregation signs on the dotted line, there should be full communication with the government agency proposing the partnership and with those in the organization or congregation who will become stakeholders in the project.
Conclusion
America’s social welfare “safety net” is the least generous and most haphazard of any Western industrialized nation. There are reasons for that, some sound, many not. We can argue about the policy decisions from our respective spots on the theological spectrum, but in the meantime, most of us will agree that we need to offer a helping hand to the millions of Americans who are struggling.
Faith-Based partnerships—done properly—are one way we can help.
[1] The term was undoubtedly intended to be inclusive of all religious charities; unfortunately, those responsible for coining it failed to recognize that equating faith with religion reflected a particularistic, Protestant conception of religion. Judaism and Buddhism are only two of the many religious traditions that are not “faith based.”
[1] Melissa Rogers has written an excellent history and explanation of the religious exemption offered under Title VII of the 1964 Civil Rights Act. See “Federal Funding and Religion-Based Employment Decisions” in Ryden, David and Jeffrey Polet, Sanctioning Religion? Politics, Law and Faith-Based Social Services. Lynne Reinner, 2005.
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