This is a paper I wrote for a debate in my Law and American society class about the legality of faith-based initiatives under the separation of church and state created by the Establishment clause of the First Amendment. I know recently I've seemed like a Bible-basher recently but this assignment really forced me to see the other side of this issue. While I agree with the ultimate decision of this case, that faith based initiatives establish an unconstitutional preference for religious charities, I enjoyed trying to make an argument I normally would not make. I also thought it would be very suitable given that today is Martin Luther King Jr. Day, which is supposed to be about providing service to our communities.
While President Obama has decided to discontinue many of the Bush administration’s controversial policies, one contentious Bush policy will survive under the Obama administration: faith-based initiatives. During the 2008 presidential campaign, Obama contended that “the challenges we face today—from saving our planet to ending poverty—are simply too big for government to solve alone. We need an all-hands-on-deck approach.”1 Obama, a former professor of constitutional law, notes that it is important that the United States respect the separation of church and state. Obama’s first foray into public service was as a community organizer in Chicago. During his time as a community organizer, he worked with churches and the Catholic Campaign for Human Development, in part, funded his work. Through his experiences, Obama learned that it is a good idea for government to have a partnership with any service organization—secular or religious—in order to address society’s needs better.
The separation of church and state is established clearly in first clauses of the First Amendment to the Constitution, the Establishment clause and the Free Exercise clause, which state
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The Founding Fathers understood the negative implications from government-directed religion after living under the religious oppression of the Church of England. They believed that government ought not to restrict the practice of religion and that religion should not dictate government policies. In a letter to the Danbury Baptists of Connecticut, Thomas Jefferson clarified the relationship between government and religion when he wrote that the religion clauses in the First Amendment built a “wall of separation between church and state.”2
Although the Founding Fathers recognized the necessity of removing government influence
from religion as well as the importance of removing religious influence from government, the Founding Fathers did not reject religion as a legitimate mechanism for political and social change. In his Farewell Address, George Washington maintains, "Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports."3 While religion can be manipulated to justify and create some of the world’s greatest atrocities—war, genocide, slavery, hierarchy, prejudice, terrorism—it can just as easily be used to combat those injustices. Religious groups have successfully addressed secular humanitarian issues such as poverty, global warming and oppression.
Recent presidents have applied Washington’s words by allowing, allowing government to assist these “indispensable supports.” In 1996, President Bill Clinton created faith-based aid in three different government grants by including a “Charitable Choice” provision that allowed religious groups to compete for grants. The Charitable Choice provision was included in the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, applying funding to the Temporary Assistance to Needy Families program. In 1998, Congress added the Charitable Choice provision to the Community Services Block Grant. In 2000, Congress again added a Charitable Choice provision to the Substance Abuse Prevention and Treatment Block Grant and provided funding for Projects for Assistance in Transition from Homelessness.4
The Department of Health and Human Services argues that the Charitable Choice provision rests on four principles. The first is that the government must maintain “a level playing field” for all religious or non-religious organizations in competing for funds. The second is a “respect for the religious character” of faith-based organization and their ability to control their own religious governance. The third is a protection of clients by forbidding discrimination in the rendering of service based on religious orientation. The fourth is a separation of church and state requiring that government funds may not be used to fund “inherently religious activities such as worship, sectarian instruction, and prostelyzation.”5
Dr. Martin Luther King, Jr. used Christianity as a mechanism for criticizing the injustices towards blacks in America, the same religion that had been used as justification for slavery by Southern whites. How can we use religion as a force for good and eliminating evil without dividing the country?
Continuing upon the principles of the “charitable choice” provision, George W. Bush created the White House Office of Faith-Based and Community Initiatives in 2001. Bush’s faith-based initiatives were not without flaws. Bush’s programs met criticism as being overly political and biased towards particular religions. The first director of the Office of Faith-Based and Community Initiatives, John J. Dilulio Jr. argued in his resignation letter that these failures, however, did not undermine Bush’s ideal of “compassionate conservatism” or the concepts behind faith-based initiatives. Dilulio asserted that the problems facing faith-based initiatives could be addressed without eliminating the program altogether.6
Obama changed the name of Bush’s program to the Office of Faith-Based and Neighborhood Partnerships, explaining, "The new name will reflect a new committment."
The complications concerning the constitutionality of faith-based initiatives parallel the dilemmas involved in a long-standing practice: tax exemption for religious institutions. Secularists have argued that tax exemption for religious institutions violates the separation of church and state because it shows a state preference for religion. However, the Supreme Court held in the Walz v. Tax Commission of New York that such an exemption did not breach the wall between church and state. In his concurrence to the decision, Justice Brennan wrote, “the exemptions do not 'serve the essentially religious activities of religious institutions.' Their principal effect is to carry out secular purposes-the encouragement of public service activities and of a pluralistic society. During their ordinary operations, most churches engage in activities of a secular nature that benefit the community.”7 Just as government tax exemptions encourage public service from religious institutions, faith-based initiatives assist such institutions in helping develop communities.
Dr. Martin Luther King Jr. famously said that Sunday morning is the most segregated time in America every week.
The United States ought to use any resource available to better communities, and if faith-based organizations are willing to provide community services with clear secular purposes, they should be encouraged to do so. The Supreme Court ruled in Lemon v. Kurtzman (1971) that the government can constitutionally fund religious organizations for legitimate secular purposes if it adheres to a few basic guidelines.8 The involved parties disputed whether Pennsylvania’s 1968 Nonpublic Elementary and Secondary Education Act violated the Establishment clause of the First Amendment. The law reimbursed private, mostly Catholic schools for “teacher salaries, textbooks, and instructional materials.” The court held that because private parochial schools served as “an integral part of the religious mission of the Catholic church” it did not properly maintain the separation of religious and secular purpose enough to allow for government funding. The Supreme Court therefore held that the in order for a law to be considered constitutional under the Establishment Clause of the First Amendment it must not violate three requirements. First, the law must have a “legitimate secular purpose.” Second, the law must not have the primary effect of either advancing or inhibiting religion. Finally, it must not result in an “excessive entanglement” of government and religion. These three standards are known as the "Lemon test" in reference to the decision from which they began.
|"Suppose we've chosen the wrong god. Every time we go to church we're just making him madder and madder." |
Faith-based initiatives can adhere to the standards set by the “Lemon test.” These programs serve a “legitimate secular purpose” by providing community services. The Office of Faith-Based and Neighborhood Partnerships outlines numerous programs to better the community. The programs include assistance to the homeless, foster-child care programs, job-search programs for the unemployed, housing for victims of domestic violence, drug rehabilitation programs, health care services, family planning programs for low-income families, and many other programs designed to assist the poor or otherwise disenfranchised.9 Obama notes that faith based initiatives are not “an alternative to government or secular nonprofits” and that they are in no way “better at lifting people up.”10 However, we must recognize that the struggles we face require a collective effort from both religious and secular institutions.
Critics of faith based initiatives argue that there is no way to separate the religious nature of churches, mosques, synagogues and other religious institutions from their secular community services. However, faith-based initiatives have strict requirements upon the organizations in order to maintain the separation of church and state. Obama’s faith based initiatives will require that organizations cannot use grant money to proselytize to the people they help. Funds provided for faith-based programs cannot be used for religious activities such as prayer, worship, or religious instruction and government-funded functions must be provided at a different time from religious activities. The religious activities and charitable activities of faith-based organization can conceivable remain separated to ensure that federal funds are not used to promote a particular religion, keeping in line with the Establishment clause of the First Amendment. The courts have shut down faith-based programs that unconstitutionally create government indoctrination by prostelytizing recipients of aid as a federal district court did in the case Freedom from Religion Foundation v. Faith Works, where a group of athiests and agnostics contested that a Milwaukee drug and alcohol treatment centered on Christian faith. The Faith Works program received two-thirds of its funding from the state yet it explicitly stressed “faith” as a key component to the rehabilitation. The court ruled that this unconstitutional based upon the the restrictions against using federal funds to advance religion.11 However, the Supreme Court has also rejected recent legal fights from atheist and agnostics contesting the constitutionality of the entire concept of faith-based initiatives. In its’ rejection of certiorari for the Hein v. Freedom from Religion Foundation, the Supreme Court held that the Freedom from Religion Foundation lacked a legal standing to challenge faith-based initiatives solely as taxpayers.12
How do we prevent politicians from causing government to become "excessively entangled" with religion? How do we prevent them from abusing religion for political purposes?
Application of the “excessive entanglement” clause of Lemon creates controversy. The late Chief Justice Rehnquist described the clause as a “blurred, indistinct, and variable barrier” in the separation of church and state.13 In Agostini v. Felton, the court described the “excessive entanglement” clause as only “an aspect of the inquiry into a statute's effect” rather than a binding precedent.14 Though this logic may seem circular, one could argue that “excessive entanglement” is an unnecessary criterion in evaluating the legality of a properly separated faith-based program. Although faith-based initiatives would require government “restriction and surveillance” like secular grants, such oversight would not breach the separation of church and state because faith-based initiatives are not an element of practicing a religion. How can the government give money to the church without an “excessive entanglement” with government oversight into the proper use of the money? How can funds be distributed fairly not to favor a particular religion over another, as the Obama administration claims it can? Can faith-based initiatives simply be left to good faith with religious officials in order to avoid “excessive entanglement?”
The Agostini decision to eliminate the “excessive entanglement” required has been upheld by the court in other decisions. The Agostini overturned key precedents set in Meek v. Pittenger15 and Wolman v. Walter, which both held that government funding of religious schools was unconstitutional because “of the excessive entanglement they can create or the possibility of government supporting religion itself.”16 The Supreme Court decided in Mitchell v. Helms based on the precedent set in Agostini, holding that funding private religious schools for secular purposes did not violate the Establishment clause so long as “aid…is offered to a broad range of groups or persons without regard to their religion.”17 The court argued, “The question whether governmental aid to religious schools results in governmental indoctrination is ultimately a question whether any religious indoctrination that occurs in those schools could reasonably be attributed to governmental action.”
The same legal problems associated with indoctrination can stem from government funding of tax-exempt, secular, non-profit organizations as showing preference for religious groups. Forbidding the allowance of tax revenue to non-profit faith-based organizations would violate the Establishment clause. This violates the First Amendment because it shows a preference for secularism over religions. To make a legal distinction between the religious ideologies of faith-based organizations and the political agendas of non-profit organizations also allows for unconstitutional discrimination based on religious identity as protected by Equal Protection clause of the Fourteenth Amendment, which asserts, “no state shall...deny to any person within its jurisdiction the equal protection of the laws."18 Title VII of the Civil Rights Act of 1964 included religion groups as a group protected from discriminatory hiring practices which would include the government hirings through contracts with religious groups.19 Funding for faith-based initiatives is therefore necessary to avoid religious discrimination in hiring for government.
Atheists and agnostics have cited the same clauses from the Fourteenth Amendment and the Civil Rights Act of 1964 to make their case against faith-based initiatives. They argue that churches discriminate based on religious identity in the hiring for these community service programs. Obama campaigned against religious discrimination in hiring for faith-based initiatives20 but since becoming President, he has directed his Faith-Based Office to consider such hiring on a "case-by-case" basis.21 If Obama believes that faith-based projects have the potential to help better the country, he should make good on his promise to make the programs comply with the Fourteenth Amendment. Mark E. Rondeau argues that the President’s “waffling” on the issue of discriminatory hiring in faith-based initiatives may not be the result of “political calculation” but rather from “the lack of in-depth study and established precedents” as to how to make faith-based initiatives effective. Much about faith-based initiatives still requires extensive study. Some think tanks have recommended forming a commission to study the issues concerning hiring, monitoring compliance with church-state safeguards, protecting beneficiaries’ religious liberty, and distributing funds evenly among various religious and secular institutions.22 Obama has asserted that faith-based initiatives will be a central component of his administration so we will have to wait and see how these factors change President Obama’s programs from those of President Bush.
Many conflicts within the separation of church and state cause concern for the sake of both religious and non-religious citizens. The legal battles over hot button issues such as putting up the Ten Commandments in court houses, “under God” in the pledge, and “In God We Trust” on money continue to aggravate secularists over a disregard for the Constitution. In many instance, the wall of separation between church and state has been breached without any interference from the court to uphold the law. Faith-based initiatives are not one of these violations of the law, however. These programs serve legitimate secular purposes that benefit all of society, so long as they adhere to the restrictions necessary to maintain the wall of separation. The final question in the debate over faith-based initiatives lies is what benefits communities most. Should the government discourage secular charitable behavior from religious institutions based on their religious affiliation or should it encourage any volunteer—religious or secular—to lend a hand in bettering the state of our communities and addressing the challenges that face our society?
9 The Center for Faith Based and Community Initiatives, U.S. Department of Health & Human Services, 2009.
for the Western District Of Wisconsin, January 7, 2001
20 Prepared Remarks: Council For Faith-Based and Neighborhood Partnerships, Barack Obama, July 1, 2008.