Confusion on Obama's Faith Based Initiative

I was asked yesterday to write an article about Obama's statements on Faith and social services.  I worked for many years on this issue and, while I applaud much of what Obama had to say, I do find his overall plan disappointing.  This is not a run for the hills, the sky is falling, vote for McCain diary.  Instead, I want people to understand what Charitable Choice is, what Obama's plan is, and why I believe it is wrong.  this is not an easy or cut and dry issue and everyone in invited to use the resources I mention at the end to do their own research and reach their own conclusions.

From 1999 until 2000 I worked on a coalition of religious and civil rights groups that were trying to educate people about a provision called "Charitable Choice" which had been slipped into an appropriations bills, without any congressional review, and signed into law by President Clinton in 1996.  From 2000 to 2002 I continued my work on Charitable Choice while working for a US congressperson.  At this point, the program had been expanded a number of times, including President Bush's creation of the Office of Faith Based Initiatives.  As I will explain below, this provision represented a drastic change in the law and was "attacked" by a strong coalition of religious groups including the Anti-Defamation league, The American Jewish Committee, The Baptist Joint Committee, Leadership Conference on Civil Rights, People for the American Way, Americans United for Separation of Church and State, and many many more.

The Pre-Charitable Choice Law

Religious entities have long provided crucial social services in local communities.  I am sure most people recognize the local food bank, homeless shelter and alcohol and drug counseling run by some religious entity.  Some popular ones are Catholic Charities and what is now known as United Jewish Communities.  These entities were allowed to team with the government as long as they kept their religious message separate from their provision of services.

These religious entities set up separate 501(c)(3) organizations that would compete for government grants to provide social services.  Once they received government money the institutions were required to provide completely secular social services.  Thus, the drug counseling was offered with qualified drug counselors and did not rely on the power of religion in order to help the addicted.  To be sure, religious entities could still provide religiously inspired drug counseling, but not with government money.  The religious entities could also not discriminate in hiring.  Thus, the Jewish Federation couldn't refuse to hire a Catholic drug counselor or Muslim cook.

This cooperation between government and religious entities was not really questioned.  Certainly issues arose.  For example, no one doubts that money in fungible.  Thus, by creating a 501(c)(3) entity and accepting government money to provide social services, that entity did not have to spend its own money on providing social services and could spend that money on its religious message.  It was argued, therefore, that the government was indirectly funding religious messages.  While there certainly is truth to this claim, it was essentially rejected by the Supreme Court in the Zelman case regarding school vouchers.

Another problem was the provision of optional religious services.  Church A accepts government money and runs a food kitchen in the basement of the church.  When lunch is over they announce that completely optional services are beginning upstairs and, as is always the case, anyone in the community is invited.  Is this coercive?  Prior to a drastic change in the law, this type of question is what the larger religious and civil rights community was discussing.  That changed drastically in 1996.

Charitable Choice

In 1996 a provision called "Charitable Choice" was slipped into the omnibus (and much maligned) Welfare Reform Act.  This provision drastically changed the law regarding the cooperation between religion and government.  For the first time, money could go directly to religious bodies, without setting up the priorly required firewalls.  The entities could use that money to provide religious social services.  Thus, God could be used, as a means of overcoming addiction.  Faith in God could be required before getting your bread.  A prayer could be required before getting a bad, and a Church could refuse to hire a Jewish drug counselor because drug counselors weren't needed, only God was.

Despite opposition from religious and civil rights groups, Charitable Choice was placed in two more bills during the Clinton years.  Then, when George Bush became President, he made the expansion of this program a major part of his platform.  He created the Office of Faith Based Initiative which, thankfully and for the first time, put light on the program.  Once that light was shone, people started to wake up to the constitutional problems with Charitable Choice.

The Constitutional problems are really not very difficult to see.  (1) the programs allow for direct government funding of religious bodies.  This alone violates the 1st Amendment; (2) Participants in these programs are at risk of religious coercion with government money.  This is the problem of the Jewish family being required to listen to the Christian evangelist before getting his meal.  Remember, not every person in need lives in a community where they can get to a social service provider of their religion.  For some people, the formerly secular and now religious social services provided by the local church were the only source of help.  Also remember that the needy are often the least informed of their rights.  Thus, they might not know they have the right to ask about non-religious social services; (3) For the first time, and in a dramatic change in the 1964 Civil Rights Act, a religious entity would be allowed to favor co-religionists for jobs funded by the government.  thus, a Synagogue could accept government money to provide social services but refuse to hire a Buddhist or Sikh to provide those services; and (4) with government money comes government oversight.  Once the religious entity accepted government money, the government has a right to oversee the use of that money.  There is nothing more anathema to the 1st amendment than a religious institution being forced to cede to government oversight.  this is the definition of entanglement.

There are also public policy problems with Charitable Choice as well.  The first is the problem that religious groups will be competing for the same pot of money.  What happens when the Nation of Islam and Wiccans apply for government grants.  On the first, should the government fund a group that is openly anti-Semitic.  On the second, can the government discriminate against a religious body because other religions think they are devil-worshipers?

Also, social services should be provided by accredited and qualified providers.  However, the Charitable Choice law allows professional training to be replaced with religious training.  Thus, a Priest can provide the drug counseling services that a certified social worker used to provide.

Obama's Confusion

Yesterday in Ohio, Obama gave a major speech about religion.  In it, he said he would expand the delivery of social services through government entities.  In doing so, he expressed a desire to achieve a goal that Bush promised but failed to achieve.

Obama's plan, however, would not allow discrimination in hiring and firing as Charitable Choice does.  It seemingly would, however, continue to allow the other constitutional infirmities to continue.  Thus, reaction was mixed.  Martha Minnow, a constitutional law professor and Jim Wallis, a liberal leaning evangelic Reverend both lauded the program while Barry Lynn, executive director or Americans United condemned it.

In this respect, Lynn is probably right.  Martha Minnow's statement is probably the most telling.  She says Obama's policy would "return the law to what is was before the current administration."  Thus, if you believed that Charitable Choice was created by the Bush administration, you would believe that Obama's plan is a return to the law as it existed before Charitable Choice.  However, Charitable Choice emerged from a Republican Congress and was signed into law in 1996 by President Bill Clinton, albeit stealthily hidden in an appropriations bills.  Thus, a return to Pre-Bush policies does not really address the infirmities with the bill.

As far as I can tell, the money still goes directly to religious entities to provide religiously infused social services.  The only alteration is the prohibition against discrimination in hiring and firing which, to be sure, is a drastic improvement.

At the end of the day, I come away being disappointed with Obama.  Certainly, take from that what you will.  The coalition I worked on heavily involved Barry Lynn and my politics on the issue tend to be very similar to PFAW.  I do recognize the power that religious groups have in providing social services.  However, Religious groups provided social services for years with government money.  They just didn't provide religious services with government money.  That program worked.  It didn't need to be changed, and it didn't need to be changed in a way that created constitutional problems.

I applaud Obama for letting people know that he is a person of faith and that Democrats, whether it should matter or not, are not anti-religious.  I also applaud him for trying to find a way to assist religious groups in providing social services.  However, I cannot applaud the program he actually chooses. The law needs to be reverted back to pre-1996 and Obama should work with religious groups and civil rights groups, many of which form a strong core of his supporters, to find a way to support the great work done by our religious bodies.

If you want more information on this subject, go to the websites of any of the entities I mentioned.  A simple google search of "Charitable Choice" will lead to a plethora of groups both for and against Charitable Choice.  Educate yourself and come to your own conclusions.