Hopes for a new year: Charitable choice

By Curt A. Levey

Legal Times, December 18, 2000

One of the few issues that George W. Bush and Al Gore agreed on was “charitable choice.” Under the Welfare Reform Act of 1996, charitable choice allows faith-based providers of social services – job training, high school equivalency classes, drug treatment, and the like – to apply for federal funding on an equal footing with secular providers.

Charitable choice unites social conservatives with those concerned about improving social services. It expands the quantity and the range of services. Consumers get more choice, and society gets new approaches to old problems.

Yet charitable choice is off to a rocky start. Opponents are unpersuaded by the establishment clause safeguards built into the 1996 act – namely, that faith-based services have secular objectives, effectiveness be measured in secular terms, and nonreligious providers be available.

Fear of opponents’ lawsuits is one reason most states haven’t implemented the charitable choice provision of federal block grants. And some religious providers face outright hostility. Witness the Boston summer camp run by Mason Cathedral Church (which is represented by the Center for Individual Rights). The inner-city camp lost its federally funded counselors when the city decided that they shouldn’t be exposed to religious symbols or allowed to pray voluntarily. Fearing such treatment, many other providers shy away from government funding.

If its opponents truly believe that charitable choice will do more harm than good, giving it a chance is the only way to test that belief. For their part, faith-based providers should take the 1996 statute at its word that funding won’t be followed by pressure to secularize. And providers must respect those who want to partake of their social services, but not their religion. The statute requires it.

The Supreme Court can play a positive role by putting a final nail in the coffin of the “pervasively sectarian” doctrine, which bars public funding of entities deemed too religious. The doctrine’s virtual requirement for intrusive government investigation makes religious providers and public officials sorry that they ever considered working together. A sound alternative is the neutrality principle, adopted by a four-vote plurality this June in Mitchell v. Helms. The principle allows funding of “a broad range of groups or persons without regard to their religion.”

Finally, state and local governments need to shed their half-hearted approach to charitable choice. They shouldn’t be encouraging participation by faith-based providers while demanding those providers shed all vestiges of religion. Boston officials did just that. Now counselors and campers are paying the price.