Shekels and Shackles Revisited:Questions for Church and State

In 1996, Congress passed the Personal Responsibility and Work Opportunity Reconciliation Act, reforming welfare “as we know it.” Among its provisions was a section called “Charitable Choice,” requiring states to contract with faith-based social service providers on the same basis as they contract with other nonprofits. The bill specified that “pervasively sectarian” organizations were not to be discriminated against; that such providers should be allowed to maintain hiring policies based upon their religious dictates; and that they could not be required to divest the premises where services were delivered of religious iconography. Charitable Choice provisions were subsequently added to other legislation, and eventually became the template for President George W. Bush’s “Faith-Based Initiative.”


Government had partnered with religious organizations and their affiliates for decades; nevertheless Charitable Choice was immediately attacked from both Left and Right. Civil libertarians objected to provisions that allowed religious providers to discriminate in employment. Religious Right activists demanded assurances that funds would not go to disfavored groups like the Nation of Islam.  African-American pastors in urban areas—arguably the main targets of the initiative—expressed concern that “government shekels” would be accompanied by “government shackles,” that the costs and regulatory burdens that accompany collaborations with government would divert resources from client services and—even more troubling—would mute the church’s historic prophetic voice (Kennedy and Bielefeld, 2001).



                                      Background & Context

Government agencies have provided services through nonprofit and religious organizations since the inception of government social welfare programs, although characterization of Charitable Choice and President Bush’s faith-based initiative as “new” or even “revolutionary” has tended to obscure that history (U.S. Senate Judiciary Committee 2001). One of the difficulties faced by analysts of these measures is that neither the legislation nor the White House Office of Faith-Based and Community Initiatives has explained what is new about these efforts, or has defined what “faith based” means for purposes of Charitable Choice, leaving researchers to wonder what, precisely, is new.


Many religious providers with longstanding histories of social welfare provision are “faith-based” in the most literal sense—that is, the provision of essentially secular social services is motivated by their religious beliefs. Feeding and clothing the poor, tending the sick, and housing the aged are approached as religious duties, rather than as opportunities for proselytizing or transforming the individuals served.  However, this is by no means universally true of religious organizations that have historically received government funding (AJC 1990). The Salvation Army has long received substantial funding, despite being “pervasively sectarian” by almost any definition of that term. (Winston 2001) Congregations are “faith based” by definition; yet studies show that twenty percent of congregations that provide social services collaborated with government agencies before passage of Charitable Choice (U.S. Senate Judiciary Committee 2001; Chavez 2001). 


Given this history, it would have been helpful had Congress addressed several important questions: what does “faith-based” mean for purposes of Charitable Choice legislation and the Faith-Based Initiative?  Do FBOs targeted by the Charitable Choice legislation differ from those with a long history of governmental contractual relationships? If so, how?  What are the barriers to their participation in social service delivery that this effort proposes to eliminate? To what extent are those barriers practically necessary or constitutionally required?  What is the availability and interest, and what are the capacities, of these organizations?  Few of these questions, however, found their way into the Congressional debates about Charitable Choice (Kennedy 2001), and none were addressed by the legislation. 


Charitable Choice legislation was explicitly predicated on the assumption that Faith-Based Organizations (FBOs) were more effective at providing assistance than the secular and religiously-affiliated nonprofits that had delivered the bulk of tax-supported social welfare programs on government’s behalf.  However, there was no empirical data available either to support or rebut that presumption. In September, 2000, with support from the Ford Foundation, our research team tried to answer that question, among others; we began work on a three-year evaluation of Charitable Choice implementation by three states—Indiana, Massachusetts, and North Carolina. The results of that research are available at, and will be the subject of an upcoming book.


One of the products of our research was a video for use by government agencies and congregations considering a new faith-based partnership. In it, we identified three significant sets of questions that prospective partners should be prepared to answer in order to decide if the proposed collaboration is likely to be mutually beneficial.


                                  The Three “C’s” of Charitable Choice

In the course of our research, we interviewed 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 suggest three areas for careful consideration: capacity, commitment and constitutionality. By Capacity, we mean an evaluation of the assets each partner brings to the collaboration: personnel, money, expertise, facilities. By Commitment, we mean willingness based upon a clear understanding of what the partnership entails and the responsibilities the partners are assuming. And by Constitutionality, we mean affirmative answers to two important questions: do both partners understand what the law requires, and are they prepared to abide by those requirements?



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?          




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 warns,


“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—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 government’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?



                                      Constitutional Constraints        


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. Congregations considering a government contract must be prepared to live within the constitutional rules, whether or not it agrees with them.


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,” that is, organizations whose religious character so permeates their service delivery as to make it impossible to divorce sacred from secular. Congregations, by definition, are pervasively sectarian.


In an effort to determine whether congregational leaders know the rules that govern faith-based partnerships, we surveyed congregations in South Bend, Indiana. (South Bend is large and diverse enough to be representative, but small enough to be manageable.[1]) We constructed a simple instrument, testing for very basic constitutional principles.  


The results supported one clear conclusion:  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 basic to understanding the operation of American constitutional principles.


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.” 


Forty-nine respondents (almost half) 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 using tax dollars to save souls.


It bears emphasizing 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 congregation signs on the dotted line, there should be full communication with the government partner and with those in the congregation who will become stakeholders in the partnership.


Becoming a government contractor may be right for a particular organization, or not. If there has been full discussion and due consideration of the pros and cons—if the congregation has the capacity to perform, the commitment to stay the course, and the knowledge and willingness to abide by the Constitution, the chances for a successful collaboration are good.




















Bane, Mary Jo. 2002. Videotaped interview by Nora Hiatt. Washington, D.C.


Buehrens, Rev. John. 2002. Videotaped interview by Nora Hiatt. Washington, D.C.


Chaves, Mark. Interview by author. Chicago, IL, April 2001.


Cleveland, Rev. Odell. 2001. Videotaped interview by Nora Hiatt. North Carolina.


Kennedy, Sheila S. and Wolfgang Bielefeld. 2001. “Government Shekels or Government Shackles: The Administrative Challenges of Charitable Choice.” Public Administration Review, Vol. 62 #1 2002


Kennedy, Sheila Suess, “Privatization & Prayer: The Case of Charitable Choice.” American Review of Public Administration, Vol.33 No.1, March 2003 5-19.

Monsma, Stephen V. 1996. When Sacred and Secular Mix: Religious Nonprofit Organizations and Public Money. Lanham, MD: Rowman and Littlefield Publishers.


Task Force on Sectarian Social Services and Public Funding. 1990. New York: The American Jewish Committee.


U.S. Senate Judiciary Committee.  Faith Based Solutions: What are the Legal Issues? Hearing before the Judiciary Committee.  107th Cong., 1st sess., 6 June 2001. 


Winston, Diane. 2001. Losing Their Religion? Available from: Accessed August 1, 2001.






[1] South Bend is the fourth-largest city in Indiana, with a population of approximately 108,000. It is part of an eleven county metropolitan area known as Michiana, which has nearly one million residents and 357,000 households.