Religious organizations have always been essential to the support network for the least well-off in American society. So what could be wrong with a government program that makes more money available to the soup kitchens, homeless shelters, and substance- abuse-treatment programs that they provide? When it comes to President George W. Bush’s Faith-Based and Community Initiatives, the answer, sadly, is . . . quite a lot. Indeed, the Faith-Based Initiative is a case study for what goes awry when we dole out public money without regard for the constitutionally mandated separation of church and state.
Historically, religiously affiliated social-service providers made a simple choice. They could accept public funding and, in exchange, agree to deliver their charitable services as a secular organization would; or they could finance their charitable works entirely through private contributions, and run their programs as they pleased. Those choosing to accept government money— including such well-respected organizations as Catholic Charities, Lutheran Social Services, Jewish Family Services, and Habitat for Humanity—typically formed Section 501(c)(3) nonprofit corporations; made employment decisions based on merit rather than religious affiliation; helped all who demonstrated need according to neutral, secular criteria; and provided services without exacting religious obedience as the price for receiving a benefit. Those choosing instead to limit themselves to private funding remained free to commingle contributions with church assets; to hire and fire based on religious criteria; to provide services only to people of their own faith; and to condition a free meal or a bed for the night on the recipient’s willingness to accept religious instruction.
But in an effort to increase the number of faith-based social-service providers, the Bush administration has blurred the line between public and private, telling religious groups that they no longer need to choose between religious programming and public funding. Five years into this new system, it is becoming increasingly clear that the Faith-Based Initiative erodes faith in government while also corrupting religion and ill-serving the most vulnerable among us.
One of the most disturbing aspects of the initiative is that, under it, the federal government funds employment discrimination. A special exemption from Title VII (the federal law addressing employment discrimination) allows churches to hire and fire employees— even those without religious duties— based solely on whether, or how well, they adhere to the employers’ tenets of faith. The Bush administration has extended this exemption to all faith-based organizations—even those supported entirely by public money—thus giving them license to require applicants to pass religious tests or sign religious oaths to hold government-funded jobs.
What should be equally troubling is the lack of public oversight of faith- based organizations. The federal government now makes grants directly to houses of worship and unincorporated associations that do not file the federal tax returns that ordinary nonprofit entities must. Thus, the government essentially exempts grantees from the critical safeguard of public accountability for use of public funds. And although the U.S. Constitution forbids using tax dollars for inherently religious activities or discriminatory programs, the Government Accountability Office recently reported that federal agencies have done such a poor job drafting regulations on the use of faith- based funding, and such a poor job monitoring compliance, that many grant recipients routinely violate the constitutional strictures and offer federally funded benefits to the needy on a pray-for-pay basis. See generally GOVERNMENT ACCOUNTABILITY OFFICE, FAITH-BASED AND COMMUNITY INITIATIVE: IMPROVEMENTS IN MONITORING GRANTEES AND MEASURING PERFORMANCE COULD ENHANCE ACCOUNTABILITY 30–39, 53 (2006).
Nor do religious institutions fare any better under the Faith-Based Initiative. Nearly 400 years ago, Roger Williams, the Baptist leader who founded Rhode Island, warned that religious freedom would flourish only if religious institutions could choose their own precepts and priorities, and decide how best to pursue them, without governmental interference. But with taxpayer dollars now up for grabs, those institutions have substantial incentives to reorder their priorities—and per haps even to distort the tenets of their faith—to increase their share of the spoils. The result is that they begin to cede important aspects of church governance to administrative agencies and officials whose preferences determine where the public dollars will flow.
The biggest losers of all under the Faith-Based Initiative are those whom the public funds were meant to help. Rather than making more money available to private social-service providers, the Faith-Based Initiative simply diverts government funds from the secular and religious organizations that for decades have used them to provide quality care to people of all faiths, now directing the money to less-experienced groups, many of which are also uninterested in reaching out to religiously diverse populations. When government shifts funds from organizations providing services on a nondiscriminatory basis to those favoring people who share their beliefs, members of minority faiths (whose religious institutions are least likely to compete successfully for government dollars) and the nonreligious are often left without reasonable options for obtaining badly needed services. In a nation founded on religious freedom, no one should have to submit to unwanted religious instruction or coerced prayer in order to receive the hot meal or medical care that taxpayer dollars provide.
James Madison and Thomas Jefferson, the architects of the First Amendment principle of church-state separation, warned that if religion became intermingled with government, both would suffer. One need look no further than the Faith-Based Initiative to see how prophetic that warning was. If the real motivation for this initiative is to recognize the value of religious institutions in serving the least well-off in American society, would we not do better to follow the path that Jefferson and Madison charted, letting institutions perform their charitable works as they see fit— free from the corrupting influences that come with the promise of easy public money—while ensuring that our tax dollars provide benefits to people of all faiths on equal terms? Richard B. Katskee is assistant legal director at Americans United for Separation of Church and State in Washington, D.C. He litigates constitutional challenges brought under the Establishment, Free Exercise, and Free Speech Clauses of the First Amendment and is working on two cases challenging federal funding to faith-based organizations.
As published in Human Rights, Summer 2006, Volume 33, Number 3, p.4-5.