Charitable choice came to life in a haphazard way. In early 1995, Carl Esbeck, a professor at the University of Missouri Law School, was preparing for a presentation on the regulation of religious organizations that receive government assistance. At the time, the only faith-based entities that were eligible for federal funding were those with arm’s-length religious affiliations, such as Catholic Charities and the Salvation Army. Such groups were prohibited from delivering religious messages and could not discriminate in the hiring of staff. Esbeck thought that eligibility should be expanded to include all faith-based providers, even those that deliver religious messages in their social programs. To make this point, he drafted legislation outlining federal guidelines that could make such an expansion possible. He passed the draft to a former student who was working for Sen. John Ashcroft, R-Mo. Ashcroft liked it and, after a few revisions, included it in legislation he introduced in the Senate that spring. It was later folded into the 1996 welfare reform legislation.
With no big-money lobbyists or grassroots groups lining up for, or against, charitable choice, the legislation passed almost overnight, with little argument. “The debate over welfare reform was so fierce that charitable choice seemed insignificant,” says Esbeck, who is now director of the Christian Legal Society’s Center for Law and Religious Freedom in Annandale, Va. “To some extent it was overlooked.”
When welfare reform was implemented in 1997, the charitable choice provisions prohibited discrimination against religious providers bidding for welfare-to-work and related social programs. Under the new guidelines, faith-based groups may use government funds without altering the religious character of their organization but cannot use them for “sectarian worship, instruction, or proselytization.” Significantly, the groups are also exempted from laws barring discrimination in hiring on the basis of religion. If a Baptist group wants to hire only Baptist social workers, for example, it can do so.
The charitable choice provision has opened the door to hundreds of new partnerships between government and faith-based groups nationwide, and that number is growing, albeit slowly. The Center for Public Justice, an organization that favors charitable choice, released a report card in September, rating states’ compliance with the provision. It found that only 12 states had taken steps to expand federal funding to all faith-based groups, and that the majority had failed to put the new guidelines in place.
A study of nine states by Amy L. Sherman, a senior fellow at the Hudson Institute’s Welfare Policy Center, found 125 new collaborations by August 1999. Good Samaritan Ministries in Ottawa County, Mich., for example, launched a church-based mentoring program for people going from welfare to work. With the government money, it was able to recruit and train volunteers from nearly 50 churches. In Winnebago County, Ill., Partners for Hope and Health–a collaborative effort of 11 churches, the state’s Department of Human Services, and an area family-violence-prevention group–used government money to help fund its church-based summer youth programs.
Marvin Olasky, a senior fellow of the Acton Institute for the Study of Religion and Liberty in Grand Rapids, Mich., said that religious groups are stepping forward to take advantage of charitable choice. “It used to be that religious groups thought they had to sell their souls to get government assistance,” Olasky said. “The message has gotten out to the groups that the situation has changed, that the climate is better for them. They’re finally starting to stick their toes in the water. There’s increasing enthusiasm.”
But growing criticism is tempering that enthusiasm. Although opponents of charitable choice vary, they all agree that religion and government make bad bedfellows.
Barry Lynn, the executive director of Americans United for Separation of Church and State–which, along with the American Civil Liberties Union and the Anti-Defamation League, has opposed charitable choice from its inception–says that a group’s ministry cannot be separated from its social service programs. He argues that charitable choice violates the First Amendment and that it results in religious coercion at the taxpayers’ expense.
Proponents argue that federal guidelines protect against coercion by prohibiting faith-based providers from using federal money for any of their religious components or from requiring recipients to actively participate in religious activities in order to gel services. In addition, a religious provider cannot be the sole provider of government-sponsored social services in any one area. There must be a secular alternative.
Still, in remote areas, offering secular alternatives can be difficult, and service providers aren’t required to inform recipients of their rights, said Elizabeth Coleman, civil rights director for the ADL. “Imagine a Jewish or Muslim person who needs social services having to sit through a Christian prayer in order to get what they need.”
Indeed, such conflict is already surfacing. Take, for example, the Jobs Partnership of Washington County, a consortium of churches and businesses in Brenham, Texas, that provides job training for people leaving welfare. The program, which had received substantial welfare funds from the state, includes lectures on biblical principles. Some participants felt that this component was coercive. The American Jewish Congress and the Texas Civil Rights Project filed a lawsuit against the state on behalf of the participants. That lawsuit is pending, and the program is now running with no government assistance.
Americans United for Separation of Church and State and the ACLU have also launched a lawsuit challenging charitable choice. In April, they sued the state of Kentucky and the Kentucky Baptist Homes for Children, challenging the constitutionality of state contracts awarded to the homes. The suit is on behalf of a counselor who was fired from the homes because she is a lesbian. They argue her dismissal resulted from religious discrimination–something charitable choice permits.
Opposition to charitable choice does not come just from civil rights groups. Some members of the religious community have reservations, too. They say federal funding poses great dangers to the independence of faith-based organizations. “Charitable choice gives too much discretion to federal agencies to neuter the religious content of the programs they fund,” says Michael Horowitz, a senior fellow at the Hudson Institute and the director of its Project for International Religious Liberty. “Over the long haul, the independence of churches will become increasingly eroded. Religious leaders will end up spending more time reading the Federal Register than the Bible.”
Despite such opposition, charitable choice is continuing to catch on in Congress and in some state legislatures. Arizona’s Legislature passed a bill that expands charitable choice to every state-funded social program. The New Jersey Legislature passed legislation that expands it to drug rehabilitation and other social welfare programs. In Congress, the concept was incorporated into the 1998 Community Services Block Grant Act, which provides federal dollars to the states for local programs benefiting poor families. And this year, charitable choice provisions were attached to four other major bills that failed to pass Congress in October.
The evolution of charitable choice appears to be as quirky as its beginning. “Normally a new idea grows for years and years before manifesting itself,” Esbeck notes. “With charitable choice, it’s the complete opposite. It just sort of passed into law. Only now is the support and opposition coming alive.”