Suing City Hall

John Hostettler, the always entertaining Congressman from Indiana’s Eighth District, is again promoting legislation to repeal what he calls a “loophole” in the law. That “loophole” allows recovery of reasonable legal fees by people who successfully sue government for violating their religious liberties. Hostettler calls his bill “anti-ACLU” legislation—as though the First Amendment and the ACLU would both disappear if fees weren’t available.

Using the language of victimization that Christians on the far right are increasingly employing, the bill’s supporters describe the measure as necessary to “protect religious liberty.”

Hostettler and his cohorts conveniently ignore a few not-so-minor points. The omissions strongly suggest that what they really want is a country where the government gets to decide whose religion is acceptable. (They seem to take for granted that government will choose theirs.) After all, the fees they want to eliminate are only awarded to “prevailing parties,” that is, to people who have won their lawsuits by proving in court that the government broke its own rules, overstepped its bounds and violated their rights.

There are several reasons for the laws that allow citizens to recover their attorney fees when they successfully sue the government for civil rights violations. A civil rights action is different from an action between private parties. In a private lawsuit, if you win, you can make the other guy compensate you for whatever damage he caused. In a civil rights suit, a plaintiff who wins doesn’t necessarily even get compensated for whatever harm he has suffered. Sometimes, he doesn’t get anything but a promise by the government agency to stop doing something illegal. But his willingness to hold government responsible is an important tool of public accountability.

If citizens have no real remedy when government misbehaves, government will misbehave. The Bill of Rights and other civil rights laws aren’t self-enforcing. They are worthless on a dusty shelf in someone’s law library—it takes legal action to make the Establishment Clause or Free Exercise Clause real. And the people who need protection from government are rarely the rich; they are often people who could never afford an attorney on their own.

It’s hard enough to find a lawyer willing to fight city hall “on contingency” when there is the hope of being paid if they win. Ironically, if fee recovery were eliminated, the only lawyers who would ever bring these cases—other than those hired by the wealthy—would be public interest law firms like the ACLU, which gets most of its support from private donations, or groups like the American Center for Law and Justice, affiliated with Pat Robertson’s Christian Coalition.

Fee reimbursement laws weren’t passed to benefit lawyers, or the ACLU or the ACLJ—they were passed to help their clients. Congress recognized that government is more likely to run roughshod over the rights of the “little guy,” than it is to mess around with the well-to-do and privileged. The fee statutes level the playing field by allowing us all to keep government in line.

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War and Peace

We have just “celebrated” the third anniversary of our invasion of Iraq.

Some wars, regrettably, are necessary. Iraq was not such a war. It was a war of choice, impelled by ideology and sold to Americans (wittingly or unwittingly) under false pretenses. Worse yet, it was justified by appealing to our fears—fears of “the other,” fears of terrorism, fears of impotence.

The choice to send our young people into combat in an unnecessary war of choice was reprehensible. But the incompetence with which the conflict was planned and executed was even more reprehensible.

Expert advice was disregarded. It’s obvious that none of the decision-makers in the Administration had bothered to learn what the region’s history had to teach. We sent courageous and patriotic young Americans into a quagmire that was eminently foreseeable to anyone who was not willfully blind—and thanks to criminally misplaced priorities, we sent them there without proper equipment and supplies. There has been plenty of money for Halliburton and other contractors, but not enough for bullet-proof vests or Hummer armor.

After each setback, the Administration and its apologists have said “no one could have known.” No one anticipated the looting that occurred in the wake of our initial attack; no one anticipated the insurgency; no one anticipated the civil war that rages there now. But people did anticipate every one of these things. They wrote articles and editorials warning about every one of them. I wrote some of them myself. Government experts wrote memos that warned about these dangers and many others in great detail. The Administration was warned about precisely what has happened—just as it was warned that Hurricane Katrina could cause the dykes to fail.

In his pursuit of some grandiose “crusade,” Bush has mortgaged our future, and diverted national resources that were desperately needed here at home. Our crumbling roads, our impoverished urban school systems, our embarrassing national health care system, and our neglected national parks all could have benefited from the nearly one trillion dollars his foolhardy, unnecessary and arrogant unilateralism has cost us.

What do we have to show for the young lives and money he has squandered?

We are less safe than we were; Iraq was not a sanctuary for terrorists before the war, but it is now. Our standing in the world community has never been lower. Our citizens are angrier and more polarized than ever. And worst of all, our belief in our own inherent goodness—the belief that America is not an aggressor nation—has been profoundly shaken.

I don’t know what we do now. Colin Powell was right when he warned about “the Pottery Barn rule.” We broke it, and we have a moral obligation to help fix it. Whether that is best done by leaving immediately or staying longer, I simply don’t know. What I do know is that this “adventure”—undertaken by a fatally incompetent and uncomprehending President—has damaged our country profoundly, and it will take a long time to recover.

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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 http://ccr.urbancenter.iupui.edu, 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?

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 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.

Conclusion

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.

References

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: http://www.killingthebuddha.com/damn_nation/losing_their_religion.htm. 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.

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Good Night and Good Luck

I hate to get cranky, but I think a lot of us are forgetting what America is all about.

Repeat after me: our constitution wasn’t designed for cowards. The Founders didn’t protect our right to say what we think because they believed we would all mouth non-offensive proprieties. They didn’t insist on our right to pray (or not) as we choose because they were confident we would all agree about the nature of Ultimate Truth. And they didn’t insist that government show a darn good reason to search or detain us because they were sure we wouldn’t ever have anything to hide.

They protected liberty because they valued it for its own sake—not because it was safe.

In fact, they were well aware that liberty isn’t safe. Freedom is dangerous, and those who drafted the Bill of Rights knew that. They just believed that a government with the power to decide what ideas may be expressed, or what prayers must be said (and to whose gods) is much more dangerous. They were willing to risk political, scientific and religious debate—just as they were willing to take the risks of a market economy. No risk, no reward.

We’ve come a long way, baby—to weenie land, apparently. Recent headlines paint a depressing picture of a society increasingly afraid to entertain different ideas or consider evidence inconsistent with our preferred realities.

In New Mexico, a nurse with the Veterans Administration is being investigated for sedition—sedition!—because she wrote a letter to the editor criticizing George W. Bush and advocating withdrawal from Iraq. The letter was signed in her private capacity as a citizen, written on her own time, on her own stationery. She has been a VA clinical nurse specialist for sixteen years; she is now refusing to give interviews and is reportedly terrified that she will lose her job.

In Washington, a thirty-six-year veteran of the Congressional Research Agency who is widely considered the most eminent living scholar of Separation of Powers has been told to “apologize” and threatened with loss of his position in the wake of a research report disputing Presidential authority to ignore Congress and engage in unchecked surveillance of Americans’ communications. This is an individual who has served with distinction under Republican and Democratic Administrations alike.

At NASA, in one widely reported incident, an expert on global warming was ordered to modify a scientific paper posted to the agency’s website. In another, five researchers from CalTech who published a report on “Potential Environmental Impact of a Hydrogen Economy” abruptly had a planned NASA conference cancelled, reportedly by the White House Office of Science and Technology Policy, and further funding for this research has been cut off.

Perhaps—before we make too many self-righteous comparisons between our own devotion to “liberty” and the Islamists violent reaction to Danish cartoons—we should take a good hard look in the mirror. That isn’t James Madison looking back. In fact, it bears a striking resemblance to Joe McCarthy.

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Friends, Enemies and Identity Politics

As I write this, the news is filled with conflicting stories of interest—and concern—to the gay community.

On the plus side, I offer two “tidbits” suggesting increased support:

In Asheville, North Carolina, a pastor has announced that he will continue to perform religious weddings, but will no longer “officiate” for purposes of conferring that legal status. That is, he will conduct religious ceremonies for couples desiring to be married in the church—including gay couples—but those who are straight and thus entitled to the legal incidents of marriage will need to make an extra trip to City Hall if they want legal recognition. He says that it is his way of refusing to participate in an unequal system.
In Ohio, in response to a Republican-sponsored bill that would bar gays from adopting children, a legislator has sponsored a bill that would prevent Republicans from doing so. The anti-gay bill had a preamble with the usual “because children are more emotionally healthy growing up in ‘traditional’ families” justification; the anti-Republican adoption bill began by citing “credible studies” showing that children raised by Republicans tended to become more rigid, less tolerant adults.” It was pretty funny. The sponsor acknowledged his bill was a spoof, but said it pointed up the unfair and ridiculous nature of the anti-gay rhetoric.

On the minus side:

· In response to the ever-vigilant Family Research Council, the federal Department of Health and Human Services has removed critical GLBT health information from its government website. FRC charged that the government “uses material from pro-homosexual activist groups…such as Parents, Families and Friends of Lesbians and Gays.” The content—which addressed substance abuse among GLBT populations—had been up for six years.

· All indications are that the Republicans—who face formidable problems in the upcoming midterm elections—are gearing up to once again use “gay marriage” and “the homosexual agenda” as their wedge issue of choice. The gay community should brace itself for a real onslaught of hateful faux piety this fall.

Welcome to the culture war, 2006 edition.

In such an environment, it would seem prudent to reward and support those who—sometimes at considerable personal risk—have stuck their necks out to stand up for equality and human dignity. In Indianapolis, one of those people has been Congresswoman Julia Carson—and I find it inexplicable that this newspaper has endorsed her primary opponent.

Not only has Carson consistently and visibly supported legislation important to the gay community, she has used her considerable political capital when she didn’t have to get involved. When timid Democrats on the Indianapolis City-County Council voted with the GOP to defeat an amendment to the City’s Human Rights Ordinance—an amendment that would have extended protection against discrimination to gays, lesbians and transgendered citizens—Carson called them in and told them to do the right thing or answer to her. The amendment passed. Without her support, it wouldn’t have.

I can only assume that the Word decided to support her primary opponent because he is a gay man. But it is a profound mistake to assume that people who share an identity will also share political and social goals. I am Jewish, and I can assure my readers that I share very few positions with Senator Joseph Lieberman.

I remember many years ago, when some of us “women’s libbers” created an organization called the Women’s Political Caucus. Its mission was to support women’s rights and especially women candidates. In the legislature at the time was a female state senator who consistently voted for conservative Christian “values” that had the effect of perpetuating discrimination against women. Redistricting had thrown her into a primary battle with a pro-choice, progressive male legislator. The Women’s Political Caucus (properly) endorsed the man.

When we engage in “identity politics”—supporting people because they are members of our “tribes”—we are perpetuating the attitudes that support inequality. If gays don’t support their friends, they deserve their enemies.

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