The Devil Is In The Details

by Nancy Biberman

On January 19, President Bush issued two Executive Orders (13198 & 13199), which establish a "White House Office of Faith-Based and Community Initiatives" and concurrent "Agency Responsibilities with Respect to Faith-Based and Community Initiatives." These Executive Orders seek to "expand opportunities for faith-based (and other community organizations), to strengthen their capacity to better meet social needs," and to "coordinate efforts to eliminate regulatory, contracting, and other programmatic obstacles to the participation of faith-based and other community organizations in the provision of social services." The orders also require federal agency audits which would identify barriers to the participation of faith-based and other community organizations in service delivery that either "facially discriminate against" or "otherwise discourage or disadvantage" the participation of these groups.

Probably the first thing that should be noted about the controversy that is ensuing over these orders is that "other community organizations" are not seriously part of the debate. It is curious there is even mention of community based organizations, although it has been suggested that the President's political advisors inserted the "others" as a means to temper the anticipated outcry over the initiative by broadening its focus beyond the "faith-based." No one has ever suggested (and there is nothing in federal law or regulation) that limits the participation of qualified community organizations from receiving federal funding for approved government programs.

JESUS WITH YOUR BOWL OF SOUP

The proponents of this initiative argue that if some "faith-based" programs "work" in solving vexing social problems, why the fuss about this new office? Don't the ends justify the means? There is ample reason, however, for concern about the "means," and for concern among all Americans, well beyond the so-called "Constitution-huggers." The mandate of this White House office threatens the very core of our pluralistic society by affirmatively inviting religious evangelicalism into the fold of federally supported programs unprecedented in this nation's history. The ramifications of this program should give pause to all who cherish the privacy of their own religious convictions. Think about the possibility that your tax dollars might now be steered to religious entities that put Jesus on the same platter with the bowl of soup.

But wait. Haven't religious organizations long provided hunger relief and other important social services? What's new and different about this initiati ve? Good question. The president's Initiative (or "charitable choice," as it is often called) originated with former Senator (now Attorney General) John Ashcroft during the drafting of the 1996 Welfare Reform Act. The concept altered existing law by permitting taxpayer funding of religious programs providing services under the Act, while allowing them to maintain their "unique ecclesiastical nature." What exactly does that mean?

A conference sponsored by the Pew Forum on Religion and Public Life the day after the Executive Orders went into effect explored the philosophical and legal issues. Most religious organizations, which have received federal funds for decades under existing federal guidelines, did not quite fathom the need for this new White House Office. Federal law (and the Constitution) essentially requires that religious organizations receiving federal funds for secular purposes (hunger relief, housing, social services, etc.) maintain a clear separation between the federally supported activities and church doctrine. Many mainstream religious organizations (e.g., Catholic Charities, the Federation of Jewish Philanthropies, etc.) create separately incorporated religious affiliates for federally supported programs. Others set up separate accounts and books in order to comply with the prohibition against mixing church doctrine (not supported by federal funds) with government funded social service programs.

THE REQUIREMENTS OF FEDERAL FUNDING

Federal law also conditions the receipt of federal funds on the provision of services that are neither permeated with religious doctrine nor operated in a discriminatory fashion. Religious organizations willing to comply with these guidelines have contracted with government to provide an almost endless list of human services: foster care, child care, after school programs, alcohol and substance abuse programs, housing, etc. Government even contracts with religious organizations to provide adolescent sexuality services (in which religious doctrine and pregnancy prevention services are often mixed into a legally dicey brew). For the most part, this system has worked well, allowing religious organizations to pursue their charitable missions while holding both government and its religious grantees to standards of non-discrimination in hiring and non-sectarianism in service provision.

It is not only religious organizations, however, which have been held to standards which require them to segregate activities for approved federally funded purposes from other activities which are not. Federal funding for legal services for the poor has long proscribed the use of government funds for certain classes of cases (e.g., abortion, voting rights, undocumented aliens, and class actions, to name a few). Legal services organizations have been required to create separate corporate entities for these federal funds to ensure that only federally-approved services are provided. Organizations that receive federal funds for family planning services but also provide abortion services for which federal funding is prohibited, operate under similar constraints. In this politically charged arena, organizations that provide both services have literally created separate entrances to their offices or buildings, provided federally supported services on different days than non-federally supported services, and, of course, maintained separate books and records.

So, if there are "strings attached" to the receipt of federal funds across the board, and if religious organizations have long been willing to live with their strings, what's the problem? Or, to put it more precisely, who's having the problems, and why? The answer to that question requires a brief legal detour that, perhaps, points in the direction of an answer.

WHAT THE COURTS HAVE RULED

In a 1988 case, Bowen v. Kendrick, the United States Supreme Court restated the constitutional framework in which religious organizations providing social services with federal funding must work. Kendrick was a challenge to the constitutionality of the Adolescent Family Life Act (AFLA), a statute that was enacted to provide grants to public or non profit private organizations, including religious organizations, in the area of premarital adolescent sexual relations and pregnancy. Congress expressly recognized, in enacting AFLA, that legislative governmental action alone was insufficient to deal with such complex issues, "since such problems are best approached through a variety of integrated and essential services provided to adolescents and their families by other family members, religious and charitable organizations and other groups in the public and private sectors." AFLA authorized funds for prevention services: to prevent adolescent premarital sexual relations; and care services: for pregnant and parenting adolescents: as well as research and demonstration project funds to investigate new approaches to these vexing issues.

The challenge to AFLA was based on the Establishment Clause of the U.S. Constitution and a long line of Supreme Court cases which held that the Court may invalidate a statute "on its face" where the statute is motivated "wholly by impermissible religious purpose; has as its primary effect the advancement of religion or requires excessive entanglement between church and state." In an Opinion written by Chief Justice Rehnquist, the challenge to AFLA was dismissed because it could not be shown that the statute, as written, would necessarily result in this religious entanglement, and that there were mechanisms in place whereby government could police grants to insure that federal funds were not used for impermissible purposes.

In effect, Kendrick held that AFLA's approach toward dealing with adolescent sexuality and pregnancy was not inherently religious despite the fact that its provisions might "coincide with the approach taken by certain religions" and services offered might conform —…coincidentally" to religious dogma. It remained to be seen, the Court said, whether religious groups would run afoul of the law by injecting their particular religious doctrine in providing AFLA-supported services. The Court was unambiguous, however, in holding that the Establishment Clause clearly prohibits "government-financed, government-sponsored indoctrination into the beliefs of a particular religious faith."

Why is Kendrick relevant to understanding the new faith-based initiative? Because all partisans in the debate see in Kendrick support for their position. Some would argue that Kendrick literally created the door into the new White House office by its vague language about precisely what sort of statute would require "excessive entanglement between church and state." However, the new President wants this office to help chart a course through federal laws, a guide to "faith-based" efforts through the constitutional thicket of "excessive entanglement." Those who are concerned about these entanglements read Kendrick to support close scrutiny of government programs or statutes to ensure against the imposition of religious doctrine on participants in government funded social programs. They argue that there is no need for a special office to widen entry into a door already opened by Kendrick.

With this legal backdrop, the mandate of the White House office becomes clearer: how can religious groups which seek to affirmatively inject faith into their approach to solving social problems do so without running afoul of the law? The short answer is that without further action by the Supreme Court, they can't. However, the more profound question is, after over two centuries of maintaining this delicate balance, should we, as a society, move in this direction? To put it another way, why now the insistence that religion is "what works?"

WHAT WORKS DOES NOT WORK FOR EVERYBODY

Creating policy through personal and anecdotal information is always questionable. That the President found salvation from Jesus and then abstained from alcohol is commendable. Churches that transform deviant behaviors in the name of Jesus, or Allah, are doing their parishioners an enormous service. No one would take issue with the proposition that some people in crisis find strength through their religious beliefs. Yet there can likewise be no doubt that what motivates one could deeply offend another. Smart social service programs that address seemingly intractable social problems know all too well that one size does not fit all. The very best secular or religious programs (whether for troubled teens; substance abusers or job seekers) work on an individual basis with program participants, make no assumptions about "what works," and try to craft the most appropriate set of services to meet an individual's particular needs. Even substance abuse treatment providers (usually the ones touted as having greater success using religious doctrine) are quick to point out that while many clients find solace in religion, they do so on their own, after the secular program has given initial guidance and treatment.

One doesn't need to be "faith-based" to provide stunning and successful solutions to systemic social ills. Unless it can be demonstrated that these organizations have been shut out of the social services marketplace, the new faith-based initiative hardly levels the playing field- it tilts it in favor of particular faith-based denominations: the evangelicals who insist (and who have gained the-President's ear) that only by serving up religious salvation along with the soup, will social change occur. Just how far outside of mainstream America are these evangelicals? Very far.

Americans have seemingly paradoxical views about their own religious commitment and the value of religious solutions for others. Virtually all polling on how frequently Americans attend any house of worship shows that there is a wide discrepancy between how many times people say they attend services, and how much they actually do. The most commonly used figure for weekly attendance is 40 percent. However; independent studies that count actual participation (e.g. numbers of warm bodies in the pews; numbers of cars in the parking lots) found that actual attendance is typically 20 percent.

Where, then, is the religious "movement" supporting such sweeping change in the nature of the relationship between government and religion? According to political scientist Ronald Inglehart, an author of the University of Michigan's "World Values Survey" in 1998, "although church attendance is declining in nearly all advanced industrial societies, spiritual concerns more broadly defined are not. In fact, in most industrial societies, a growing share of the population is spending time thinking about the meaning and purpose of life." As well we should.

CASE STUDIES IN NEW YORK

New York City is a poster child for the multi-ethnic and multi- religious nation we have become. The notion that any religious doctrinal approach funded by government could address the social service needs of our heterogeneous community is cause for worry. Eighty-five percent of Americans say that their religious preference is some form of Christianity, according to a 2000 Gallup poll. Where do minority religions fit into this scheme? Is there potential for abuse? For religious indoctrination? You bet.

Even without the faith-based initiative, New York has tales to tell of taxpayer dollars earmarked for secular purposes and then, somehow, misspent. Some years ago, a housing subsidiary of a religious organization rehabilitated a swath of abandoned buildings in the Bronx. As part of the housing rehab, a primary health care clinic was created. The provider of the health care services chosen to operate the taxpayer-funded clinic refused, for religious doctrinal reasons, to provide information to patients on AIDS prevention, sexually transmitted diseases, or family planning (beyond insisting on abstinence). In this case, the religious organization "played by the rules", yet was able to provide health services, according to its doctrine, without repercussion.

UNCHARITABLE LACK OF CHOICE

In states which chose to implement some form of "charitable choice" in conjunction with TANF, (remarkably, fewer than 4 states in the country chose to do so!), stories of discrimination abound. In Kentucky, a home for troubled young people operated by a religious organization that received 50 percent of its funds from governmental sources, fired a staff member who marched in a gay pride parade, on the grounds that her sexual preference was not consistent with the organization's doctrine (a lawsuit is pending in the U.S. District Court in Kentucky). In Texas a complaint was filed against a church-sponsored job training program by a man who did not want to participate in the mandatory religious part of the offering. His "charitable choice" was 60 miles away.

The playing field that the new White House Office seeks to "level" is already a minefield. And the consequences of even a few missteps could take us, as society, down a road which, in our musings about the meaning and purpose of life, we really don't want to go. Maybe the comedians see further down the road than the rest of us. Comedy Central's Daily Show recently ended a painfully hilarious piece on the new "faith-based" initiative with this:

"If you give a man a fish, he will eat for a day. If you fund a church to give a man a fish, he'll eat every day as long as he comes to morning services."

Gulp.

Nancy Biberman is an attorney and the founder and president of the Women's Housing & Economic Development Corporation, a community- based organization in the Bronx that provides housing, job training and other services.

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