The Joy of Sects

Now that the election has finally ended, politicians may be less preoccupied with declaring their allegiance to God, but efforts to involve Him in public policy show no sign of abating. Most Republicans and many Democrats have enthusiastically advocated federally funded, sectarian social service programs, which were promoted initially by the religious right. George W. has even proposed establishing a new federal "Office of Faith-Based Action" (in other words, an Office of Sectarian Initiatives). Exploiting the widespread belief that godliness is essential to virtue and the assumption that religious faith helps cure chronic welfare dependency, drug abuse, and other social ills, "charitable choice" programs have managed to make direct government aid to religious sects seem as American as football prayer. What politician wants to oppose either charity or choice, much less a "faith-based" program?

Charitable choice was introduced in 1995 by the ultraconservative John Ashcroft, the former Missouri senator who lost his re-election campaign to a dead man and is Bush's choice for attorney general. (Among the traits that should disqualify him as AG is his contempt for constitutional strictures on establishing religion.) Ashcroft's proposal to provide federal support for sectarian social service programs was included in the 1996 welfare reform law and spawned a legislative movement that channeled tax dollars directly to religious institutions. A charitable-choice provision was included in the 1998 Community Services Block Grant Program and the 2000 Youth Drug and Mental Health Services Act. And in the past few years, charitable-choice provisions have been routinely added to numerous House and Senate bills, such as the Even Start Family Literacy Programs and the Community Renewal and New Markets Act. Advocates of federally funded sectarianism hope to pass legislation that would simply include charitable choice automatically in all current and future public-health and social service programs that receive federal funds.

Ashcroft's remarkably successful initiative is creating unprecedented financial partnerships between church and state. Before becoming enamored of charitable choice, the federal government more or less respected First Amendment prohibitions on direct public funding of "pervasively sectarian" organizations. Religious groups that provide social services have been eligible for government support, but they've generally been required to establish independently incorporated secular affiliates to receive and administer public funds, and they've been barred from using service programs for proselytizing and from delivering services in sectarian settings. Charitable-choice bills challenge this principle by expressly providing for federal support of pervasively sectarian organizations. They allow services to be offered in sectarian environments--and they even permit government funds to be used for "sectarian worship, instruction, or proselytization" if the funds are provided in the form of vouchers to individual recipients. And in most cases, religious groups that receive direct federal aid may use private dollars for "worship, instruction, or proselytization" in the context of federally supported programs. Since money is fungible, these provisions effectively allow all government funds--direct and indirect--to be used evangelically. That, of course, is the purpose of charitable-choice bills, which reflect the presumption that sectarian social service programs are innately superior to secular ones.

At the moment, it is probably futile to oppose charitable choice by questioning this presumption or pointing out the dangers in government-sponsored sectarianism. No doubt they will surface soon enough, when unpopular or outré sects begin demanding their share of the federal pie. People who favor government funding of mainstream churches may be less inclined to support grants to the Nation of Islam or the Reverend Sun Myung Moon, much less the Church of Scientology. The government will be constitutionally (and morally) restrained from discriminating against maligned religious minorities, but people convinced that their faith alone can lead to salvation won't let the Constitution deter them from pressuring bureaucrats to distinguish between false religions and true. Then the relationship between religious freedom, religious harmony, and separation of church and state is likely to be clarified. But for now, the popularity of charitable choice rests on cheerful assumptions of ecumenicism. Listening to politicians prate euphemistically about "faith-based" social services, you'd think that religion in America was somehow nonsectarian.

Many religious people surely know better. Some recognize the coercive potential of sectarian social service programs; and a surprising number of religious groups have spurned charitable choice for fear of becoming dependent on government funds and entangled with government regulators (funding is usually accompanied by regulation). Indeed, it's hard to see how some of the safeguards of charitable-choice bills--provisions that bar using direct government funds to proselytize or that prohibit conditioning the delivery of services on professions of faith by recipients--can be enforced without substantial federal oversight.

But other religious institutions, hungry for tax dollars and convinced of their own righteousness, expect funding without regulation--and to some extent, they're getting it. One charitable-choice proposal actually deletes a provision that prohibits publicly subsidized service providers from withholding assistance to individuals who refuse to "actively participate in a religious practice." And all charitable-choice bills exempt government-funded religious groups from federal civil rights law that forbids religious discrimination in employment. In other words, religious organizations that run federal programs can decline to hire outside the faith and can, in effect, fire people for heresy.

Privately funded religious organizations have long enjoyed similar exemptions from federal laws; and they have practiced religious discrimination in employment, because, as private groups, they enjoy rights to associational and religious freedom under the First Amendment. But private associations must, of course, give up private associational rights when they accept government support and become, in part, de facto public entities--as the Boy Scouts of America is learning. Relying on its status as a private group, the BSA recently won a Supreme Court case affirming its First Amendment right to discriminate against gay people; but it is losing some state support, because it openly violates various antidiscrimination laws. Advocates of charitable choice want sectarian organizations to have what the BSA is losing: the benefits of public funds without the responsibility to obey public laws. They want only to obey God's law--which is fair enough, so long as they don't depend on Caesar's money.

This is not only a matter of principle. The drive to exempt federally funded religious groups from the nation's antidiscrimination laws threatens to wrest equal employment rights from significant numbers of workers. Some civil rights advocates view charitable-choice bills as backdoor attacks on the civil rights gains of the past 30 years.

Religious discrimination is bad enough, but legalizing its exercise can lead to discrimination based on sex, sexual orientation, and perhaps race as well. Courts have broadly interpreted the rights of private sectarian employers to hire and fire on the basis of religion; they have upheld the firing of lesbians, for example, and the firing of pregnant women deemed guilty of engaging in illicit affairs. Sometimes people are fired for adhering to their own religious traditions: A federal court has upheld a Christian retirement home's dismissal of a Muslim receptionist who insisted on wearing a head covering. Courts may be less likely to excuse faith-based claims of race discrimination. Consider the Supreme Court ruling that denied Bob Jones University its tax exemption because, in the name of religion, it prohibited interracial dating. But if Bob Jones University were a service provider under some charitable-choice proposals, it would have legislative permission to prohibit interracial dating among employees. Religious groups that preach racial or ethnic hatred (white-supremacist sects or groups like the Nation of Islam) will be eligible for charitable-choice funding. As long as the law expressly permits them to hire and fire on the basis of religion, the law will effectively authorize race discrimination, financed with public funds.

It's hard to know whether state and federal courts--including, ultimately, the U.S. Supreme Court--will uphold charitable-choice laws. The Supreme Court seems to be fashioning a more permissive approach to government funding of sectarian activities; and one or two key Court appointments by Bush may end separation of church and state as we've known it. Still, charitable choice is vulnerable to attacks under First Amendment prohibitions on state-established religion and 14th Amendment guarantees of equality (which don't generally apply to privately funded organizations).

Legal challenges have only just begun. The first case was recently brought by the American Jewish Congress against a state charitable-choice program in Texas that funded a Protestant-evangelical job-training program. Imagine the welcome that a Jewish organization, headquartered in New York, receives in Texas when it challenges government-funded proselytizing by a local group of evangelical Christians. We hear a lot of talk about the virtues of religion. Charitable choice is more likely to release religion's fury. ?