For charitable choice

Federal money can co-exist with religious speech without violating the First Amendment

By Michael McDonald
National Review Online

The Left denounces it as a Republican pay-off to the Religious Right. The Right denounces it as a Trojan-horse attempt to regulate church-sponsored aid programs. In the middle stands President Bush, the man responsible for promoting the “it” in question: a controversial initiative to make it easier for faith-based social programs to receive government dollars.

President Bush has been in office for over 100 days now. With the exceptions of his push to cut taxes and his adroit handling of the China crisis, no other issue has generated more press attention than his refusal to back away from his campaign pledge to expand the role of religious charities in federal welfare programs.

Predictably, self-anointed guardians of the “people’s right to know” at the New York Times and elsewhere have gone out of their way to offer traditional censors of religious speech in the public square as much space as required to revile the president’s new Office of Faith-Based Initiatives.

Indeed, in the early weeks of the new administration hardly a day passed without some representative of the ACLU reacting in print or on camera to the latest White House statement on the value of infusing welfare assistance with both money and values in much the same way as a vampire does before a crucifix. “The Bush Administration is out to subsidize religious evangelism,” they shrieked. “Theocracy threatens!”

The rhetoric was laughably overblown. Polling data bears this out: According to a recent NBC-Wall Street Journal survey, 76 percent of Americans favor “giving federal funds to private groups, including religious organizations to deal with social problems.”

With that level of public support, it’s logical to assume that the president’s plan would encounter little opposition in Congress as House and Senate committees meet in coming weeks to debate whether to expand welfare laws to allow religious groups to compete for federal funds. But even as the Left’s criticism has been discounted, new concerns have been voiced by the libertarian Right and by the leaders of orthodox religious groups that have long sought to keep the government at bay.

For example, this past week representatives of more than 300 such groups met in Washington to talk about charitable choice. Most of these groups have fought to construct a parallel, private culture different from the vulgarly antinomian one which the Supreme Court insists the Constitution requires in the public sphere.

These conservative congregations are worried that any federal money they receive will come packaged with federal strings. Thus, no matter how well intentioned, the president’s plan may only succeed in undermining the very religious groups it seeks to help.

Policy analysts at the Cato Institute have raised similar concerns: Once faith-based charities go on the “public dole,” they argue, government regulation of their hiring practices and other activities will follow. Concurrently, internal pressures may lead churches to transfer their energies away from providing services and toward cadging ever-larger governmental handouts. The result: less social work, less religion, and more governmental bureaucracy.

Are these concerns justified? A case that my group, the Center for Individual Rights, has brought against the City of Boston on behalf of a religious institution involved in providing welfare services may help provide an answer.

“Keys of Life” is a summer day camp run by our client, the Mason Cathedral Church of Christ in God in Dorchester. The aim of the program is keep over two dozen youngsters off the streets. Children who participate in the Keys of Life program begin the day with a prayer and a Bible story. They then engage in a variety of recreational activities.

In the mid-1990s, the City of Boston encouraged the Keys of Life program to participate, along with hundreds of other private and public organizations, in a program designed to alleviate teenage unemployment. Teenagers signed up for the city’s Summerworks program, selected an organization they wanted to work for, and were then paid to work at whatever organization they had chosen. Teens who chose the Keys of Life program agreed to supervise the younger children as they read, played ball, or went swimming or on field trips.

In the beginning, city administrators praised the Mason Cathedral camp. All this changed when a series of spot inspections led bureaucrats to suspect (gasp!) that the teenage counselors were being exposed to too much religion. As one Boston bureaucrat told the Boston Globe: “This program is funded with federal dollars, and it’s very clear that the youths…cannot participate in religious…activity.” The city was willing to allow Keys of Life back into the program, but only if the morning prayer and Bible stories ended and if the church agreed to remove all religious symbols that were visible to the campers and to the federally funded counselors.

The issue in the Mason Cathedral case — and for charitable choice in general — is whether federal money can co-exist with religious speech without violating the First Amendment to the Constitution. We believe it can. Accordingly, CIR sued the city on Mason Cathedral’s behalf last September. The case will be argued in federal court later this year.

The First Amendment guarantees Americans the right to the free exercise and expression of their religious beliefs. It further forbids excessive entanglement with religion. The participation by Keys of Life in the City of Boston’s SummerWorks program relies on the voluntary choices of private individuals. The only teenagers who received federally funded stipends to work at Keys of Life were those who chose to be there, after being fully informed of what to expect. If they were exposed to religious speech and — God forbid! — actually took part in it themselves, they did so only after being repeatedly told that participation was voluntary. Keys of Life was popular with counselors and campers because of free choice, not because of government coercion. And in this case, as with all properly constructed charitable-choice programs, voluntariness is the key to avoiding forced proselytizing.

At the same time, by prohibiting city-funded counselors from voluntarily joining in prayer of Bible study, the city violated the counselors’ right to the free exercise of religion. Moreover, by demanding that Mason Cathedral eliminate religious symbols and speech from the Keys of Life Camp, the city also impermissibly entangled itself in the micromanagement of a private religious program.

If the City of Boston’s decision stands, critics of charitable choice will have been vindicated and the president’s program will be in serious jeopardy. But there is no reason why it should. Seeking to improve the performance of public welfare agencies, and impressed by the demonstrated track record of faith-based providers, the president is pushing for his program because he believes that it will achieve results. The City of Boston lost sight of this ultimate objective.

The government should invite religious groups such as Mason Cathedral to participate in its welfare programs on the same footing as other secular groups. The government should then not make unconstitutional demands that religious groups refrain from their normal religious activities. Indeed, there is no reason for it to make this demand as long as the participants are there of their own free will. If Congress can keep this in mind as it crafts legislation to implement the president’s vision, charitable choice will be a useful means of helping those in need without running afoul of the Constitution either by subsidizing it or by secularizing it.