“Charitable Choice”: An Analysis
By John M. Swomley
[Dr. John M. Swomley is professor emeritus of Social Ethics at St. Paul School of Theology in Kansas City, Missouri. He is a frequent contributor to this journal.]
When the welfare reform bill was before the Congress, Senator John Ashcroft of Missouri amended it with what is known as the “Charitable Choice” provision. On the surface the idea of involving charitable religious or other private organizations in work with poor or needy persons sounds like a worthy cause, but it is not what it pretends to be. It is first and foremost an effort to have federal and state governments pay churches, synagogues, and other charitable enterprises for what they are already doing.
This device requires religious and other groups to sign government contracts which make them become government agents rather than private organizations doing good and helpful work as a part of their religious mission or reason for existence.
Therefore it is essential to examine carefully any legislative efforts to have government finance and direct religious and charitable enterprises which were organized as non-governmental agencies with religious, sectarian, or other ministries to people.
1. The Charitable Choice provisions are part of a larger public law which is entitled The Personal Responsibility and Work Opportunity Reconciliation Act of 1996. That legislation provides for federal “Block grants to states” as well as a state program “funded under Part A of Title IV of the Social Security Act.” What this means is that states would be forced to enter contracts with and engage in government oversight of religious institutions, however sectarian. The word “forced” is used because any religious organization could sue a state on the same basis as any other non-governmental provider that wanted a government contract. That suit is possible because the law specifically provides that “neither the Federal’’ government nor a State receiving funds under such programs shall discriminate against an organization which is, or applies to be, a contractor… on, the basis that the organization has a religious character.”
ˆ 2. If the State of Missouri, for example, were to provide any financial aid to religious organizations, it would violate the State Constitution and make it vulnerable to lawsuits. That Constitution states “[No] money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof, as such…” The State could be sued if it violated its Constitution because the Constitution refers to “public” money — not just State money.
3. One of the “Charitable Choice” provisions would permit the provision of government social services in a house of worship and grant religious contractors a right to display “religious art, icons, scripture or other symbols” in any area where government-funded services are provided.
4. The “Charitable Choice” provisions would permit religious contractors to discriminate for or against employees based on their religious beliefs, even though they are paid with government funds.
5. Under the “Charitable Choice” provisions the religious organization. receiving and expending funds shall be subject to government financial regulations and audits unless it sets up a separate organization to do its work and disburse government funds.
6. The same law provides that no government contract funds “shall be expended for sectarian worship, instruction, or proselytization.” Yet it provides no enforcement mechanism and explicitly forbids government control over the “practices and expression of its religious beliefs.” In any event, the provision against “worship, instruction or proselytization” is unenforceable because government may not monitor or censor what churches express in their worship or other expression.
7. Although this law specifically provides that beneficiaries of religiously transmitted government assistance who object “to the religious character of the organization” can “within a reasonable period of time after the date of such objection” receive “assistance from an alternative provider” nothing in the legislation provides for notice to be given to beneficiaries to inform in them of such a right or of the right not to be subject to compulsory religious worship or proselytization.
8. The “Charitable Choice” legislation is likely to do serious damage to the religious mission of churches that already provide benefits to needy individuals with private funds. If other religious organizations in the same ˆ area are funded by the government more lavishly, there will be religious competition and in effect encouragement or “coercion” of nonparticipating churches to get into the government program.
9. If churches become government agents, one likely result will be less active participation by church members and increased dependence on government funds. Many European countries have already gone down this slippery slope, thereby gravely damaging the attendance, stewardship, and spiritual vitality of their churches.
10. Finally, in almost every city and county there are numerous churches. Presumably state governments cannot furnish each of them with funds either equally or equitably. Undoubtedly the churches, sects, or denominations with the most political influence would get government funding. When the government chooses one or more churches or other religious organizations over others or when churches seek government funds, there is thereby an establishment of religious organizations by the government.
It is evident that this legislation would seriously damage ordestroy separation of church and state by nullifying the First Amendment clause that government “shall make no law respecting an establishment of religion.” This measure not only authorizes federal and state governments to fund churches and other religious institutions “on the same basis as any other non-governmental providers” but also to make them agents of the state.
Are there alternatives to this blatant invasion of religious liberty? There certainly are. One is for government directly to fund its own welfare program with paid employees who are trained for social service to persons in need.
Another is to provide a channel for religious and other charitable organizations to make referrals to government agencies and even to share information about existing programs.
Still another is for legislatures to encourage private giving by tax incentives which would allow income tax deductions for non-itemizers to deduct 50 percent of their charitable gifts over a specified amount, such as $400 or $500.
Still another alternative is for religious organizations to form separate entities to provide secular social services with tax money. This is already ˆ being done by the Salvation Army, Church World Service, Lutheran Services, and Catholic Charities.
Among the national organizations opposed to “Charitable Choice” provisions are Protestant and Jewish groups such as the American Baptist Churches, the American Jewish Congress, the Baptist Joint Committee on Public Affairs, Central Conference of American Rabbis, Church of the Brethren, United Methodists, Presbyterian Church USA, United Church of Christ, and the Unitarian Universalist Church.
Among the secular groups opposing this scheme are the American Civil Liberties Union; American Federation of State, County and Municipal Employees, Americans United for Separation of Church and State, Americans for Religious Liberty, the National Education Association; the National Black Women’s Health Project; N.O.W. Legal Defense and Education Fund; People for the American Way; and others.
It is significant that not one far right religious organization opposed it, such as the Christian Coalition, James Dobson’s Focus on the Family, or the Catholic Right to Life movement. Was it because they oppose separation of church and state, or because one of their chief spokesmen in the Senate, Senator Ashcroft, was advancing their agenda?
Certainly this “Charitable Choice” scheme violates the Establishment Clause of the Constitution, numerous Supreme Court decisions, and the whole idea that people of religious faiths and none should not have their taxes used to support government financing of religious organizations or any religion.
In short, the “Charitable Choice” concept strikes a heavy blow against the American doctrine of separation of church and state. Although the Congress has now passed this legislation and the President has signed it into law, it is to be hoped that the courts will overturn it on the clear basis that it is an egregious violation of the First Amendment to the Constitution, the very cornerstone of our liberties.
