EVALUATING THE FAITH-BASED INITIATIVE: Is Charitable Choice Good Public Policy?

Ever since both presidential candidates in 2000, Albert Gore and George W. Bush, embraced charitable choice legislation and pledged to place faith-based initiatives at the center of their administration's efforts to overcome poverty, the role of religion in public life has enjoyed unusually frequent and intense public discussion. Whether at elite academic centers, top Washington think tanks, or the front and editorial pages of our leading newspapers, religion's role in solving America's social problems has been a central topic of widespread, vigorous debate in the last several years.

This article addresses one important part of this debate-the legislation and policy popularly called "charitable choice." First included in the 1996 welfare reform legislation and subsequently included in three other acts signed by President Clinton, charitable choice has become perhaps the most controversial item of the entire set of faith-based initiatives. Opponent Barry Lynn, director of Americans United for Separation of Church and State, has suggested that charitable choice "may be the worst idea in modern political history."1 Proponent James Skillen, director of the Center for Public Justice, on the other hand, argued in a lecture at Princeton that "if the principles of Charitable Choice are implemented successfully and remain in place over time,... the outcome could well be a fourth order of pluralism" that would replace the understanding of American pluralism dominant in the courts and public life for the last half century.2

Both friend and foe acknowledge that what started as a relatively obscure section of the 1996 welfare bill, introduced by freshman Senator John Ashcroft, has become an important part of contemporary political life and debate. Wendy Kaminer grudgingly acknowledges that "Ashcroft's remarkably successful initiative is creating unprecedented financial partnerships between church and state."3 Penn political scientist John Dilulio, first head of President Bush's new White House Office on Faith-Based and Community Initiatives, notes that five years ago, charitable choice was a "little-noticed landmark," but today it is "much noticed [and] mainstream."4

This article outlines the basic provisions of the charitable choice legislation; sketches its brief history; spells out the strongest arguments for and against it; outlines the setting in political philosophy where charitable choice is most at home; and, finally, concludes with some brief additional comments on why I support it.

THE CENTRAL PROVISIONS OF CHARITABLE CHOICE

Just what is charitable choice? The fundamental purpose of the charitable choice section of the Personal Responsibility and Work Opportunity Act of 1996 was to remove illegitimate restrictions on faith-based organizations (FBOs) so that, when state and local governments using federal welfare block-grant funds from the 1996 Welfare Bill choose to contract with nongovernmental social-service providers, all types of faith-based providers, including very religious ones, would experience a level playing-field and enjoy full opportunity to compete with all other nongovernmental providers on an equal basis. To safeguard both the nonestablishment and free exercise clauses of the First Amendment's protection of religious freedom, the charitable choice provisions permitted religious organizations to accept government funds for providing specified services "on the same basis as any other non-governmental provider without impairing the religious character of such organizations, and without diminishing the religious freedom of beneficiaries."5

To protect religious organizations' autonomy, the legislation specifically stated that an FBO receiving federal funding through the welfare bill retains "control over the definition, development, practice, and expression of its religious beliefs"; need not "alter its form of internal governance" or "remove religious art, icons, scripture or other symbols"; and retains the hiring safeguard specified in the 1964 Civil Rights Act, which outlines the right of religious organizations to choose to hire only employees who share the organization's religious beliefs.6

To protect clients' religious freedom, the legislation states that clients may refuse to participate in any religious practice and may request service from an alternative provider-secular, if preferred-that is accessible to the client and of equal value. Furthermore, no participating FBO may discriminate against clients on the basis of religion. Finally, the legislation stipulates that "no funds provided directly" to FBOs may be used for "sectarian worship, instruction or proselytization."7 Finally, the Bush administration added a provision, based on the Supreme Court's decision in Mitchell v. Helms, 530 U.S. 793 (2000), that requires FBOs receiving direct government funding to separate in time and place privately funded specifically religious activities from other government-funded activities.

Probably the most innovative aspect of charitable choice law is its clear abandonment of the principle that government funds may not flow to so-called pervasively sectarian organizations, lest government thereby "aid" religion. Charitable choice follows the alternative strategy that the Supreme Court increasingly has come to adopt: To honor both the establishment and religious liberty requirements of the First Amendment, government should treat all its potential partners the same, focusing not on whether they are religious, too religious, or secular, but on how well they can provide needed services. Charitable choice focuses on outcomes for clients and equal opportunity for all effective nongovernmental providers rather than on the service provider's estimated degree of religiosity. The other striking development in charitable choice law is its explicit provision that accepting government funds does not entail loss of a religious organization's right to choose to hire staff who share its religious beliefs.