BY Gerald J. Russello
January 16-29, 2011 Issue | Posted 1/7/11 at 4:10 PM
This past November, President Obama signed an executive order that continues the so-called Charitable Choice program, which permits federal monetary grants to social-service organizations without regard to religion.
The program, which was begun during the Clinton administration, was a brainchild of Carl Esbeck, a law professor at the University of Missouri School of Law. The program allows religious groups to compete for federal grants with other secular institutions. It has endured, essentially with no changes, through the Bush and Obama administrations.
Among other features, the new executive order clarifies that in applying for federal grants religious organizations may keep religious symbols and art in their facilities and may continue to use a religious affiliation in their name. The order establishes a special interagency working group to research the results of religious organizations applying for and receiving grants. The group is required to send its recommendations to the president to ensure that the rules in providing grant money are applied fairly and without discrimination to religious groups.
For their part, religious groups must not discriminate against the beneficiaries of their services on the basis of the beneficiaries’ religious beliefs or refusal to participate in religious services. However, any explicitly religious activity must be conducted separately from the social-service functions and must be separately funded.
Is Charitable Choice a good idea? Certainly the impetus to help those in need through religious or secular institutions cannot be faulted. Religious groups that provide social services should be able to participate on an equal footing for federal grants with secular social-service providers. Discrimination by the government in this area is inappropriate as a constitutional matter, since allowing the government to discriminate against religious groups would arguably violate the First Amendment.
Further, extending grants to religious groups may be more sensible policy. Many of these groups, inspired by a sense of mission rather than profit, sometimes do a better job than the federal government at delivering services to needy people. Allowing money to go directly to them, rather than setting up a government entity to perform similar services, would be inefficient.
And yet the program may still present problems for religious groups. First is the tricky business of giving a definition of “religious activities.” The executive order tries to distinguish between the provision of social services and “explicitly religious activities,” which it defines as including “activities that involve overt religious content, such as worship, religious instruction or proselytization.” This distinction makes sense as far as it goes. Operating a homeless shelter or a clinic is different from conducting religious services.
Yet things get more complicated if it is the government that decides what it is that constitutes religious activities. Many religious groups consider their social-service work an outgrowth of their religious mission, and in the Christian tradition the corporal works of mercy are a religious obligation. Drawing fine lines may be tricky, but hopefully not impossible.
This concern dovetails with a second potential difficulty in the executive order. Requiring religious organizations not to discriminate on the basis of a recipient’s religious belief, or lack thereof, makes sense. By definition, recipients are in a relatively powerless state, and the executive order is intended to protect them from religious intimidation.
However, the government is of two minds when it comes to the provision of services by religious organizations. There is a risk that the nondiscrimination principle within the Charitable Choice program will transform into a principle of consumer autonomy, that is, a rule allowing the recipients of services to dictate to religious institutions what kinds of services they can provide without being “exclusively” religious. We have seen some of this in a different context: for example, state laws requiring Catholic institutions to provide contraceptives as part of their insurance coverage. These state laws define what constitutes “appropriate” insurance, and religious institutions must obey or lose benefits.
One can easily see something similar occurring under this executive order to restrict or punish religious social-service organizations for providing a service seen as “explicitly religious” when in fact it is no more than an expression of the organization’s religious principles. Religious organizations will therefore be required to either accede to the secular state’s demands or refuse to accept funding, which for many organizations is not an option. This has been the result with some Catholic adoption agencies. As a result of their refusal to place children with same-sex couples, they have had to close.
What is missing, therefore, is a sense that it is the state’s burden to prove that an aspect of a religious organization’s mission is “exclusively religious,” and should recognize that in the absence of “worship, religious instruction or proselytization,” religious social-services organizations should reflect their faith. Perhaps the interagency group can incorporate that principle into its recommendations for the next iteration of the program.
Gerald J. Russello is a fellow of the Chesterton Institute at Seton Hall University.
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