Will 'charitable choice' survive the Obama Justice Department?
Mar 2, 2009, Vol. 14, No. 23 • By JOSEPH LOCONTE
On February 5 President Obama announced the creation of a White House Office of Faith-Based and Neighborhood Partnerships, a revamped version of the Bush administration's contested program to expand the reach of religious charities fighting poverty and other social problems. Like George Bush, Barack Obama described the contribution of faith-based organizations as "critical" to meeting human needs. He praised groups that demonstrate a "living, breathing, active faith." And he promised to "empower" them with more federal funding. Unlike the Bush initiative, however, Obama's plan threatens either to discriminate against religious providers or to fatally compromise their religious identity.
The Bush effort was built on the 1996 "charitable choice" legislation, which made it unlawful for federal agencies offering antipoverty grants to exclude faith-based organizations from receiving funding because of their religious character. That law guarantees participating groups control over "the definition, development, practice, and expression" of their religious beliefs. It also allows them to consider religious commitment in employment decisions--the same right enjoyed by churches, synagogues, mosques, and other houses of worship.
The Obama White House--joined by the Democratic party leadership and a coalition of left-wing activists--rejects both the spirit and letter of the law. Candidate Obama, in the "guiding principles" for "partnering with communities of faith" that his campaign published last summer, declared that religious organizations receiving federal funds "cannot discriminate" in hiring for religious reasons. Under this view, faith-based groups could be compelled to employ individuals who reject their religious tenets. The Coalition Against Religious Discrimination, which includes organizations such as the Human Rights Campaign, is especially anxious about gays and lesbians denied jobs by religious employers who uphold traditional views of marriage.
Whether President Obama will prod Congress to repeal or amend the hiring protection of the charitable choice law is unclear. Joshua DuBois, who worked on the Obama campaign and now heads the faith office, said the Justice Department will review the issue on "a case by case basis." This didn't satisfy the New York Times, which last week ran an editorial scolding the administration for not immediately overturning the hiring protection by executive order. Plainly, the institutional autonomy of religious organizations--at least those interfacing with government--is now at risk.
The White House and its allies are quick to cite Title VII of the 1964 Civil Rights Act, which banned employment discrimination on the basis of race, sex, national origin, or religion. They are slower to admit, though, that Title VII carved out a clear exemption for houses of worship. Critics of charitable choice insist that their grievance is not with the mission or beliefs of religious entities, but rather with "government-funded discrimination" in employment.
Yet why should a charity's acceptance of taxpayer support to alleviate poverty negate its right to freedom of association? Defenders of the law argue that if Planned Parenthood--which receives about $336 million in government grants and contracts--were denied the right to exclude pro-life Catholics from employment, its lawyers would be mobilizing like locusts. "Faith-based organizations can hardly be expected to sustain their religious vision without the ability to employ individuals who share the tenets of the faith," explains Carl Esbeck, a University of Missouri law professor who helped draft charitable choice.
A bipartisan group of lawmakers initially agreed. Passed as part of the 1996 welfare reform legislation, charitable choice was approved for four additional programs during the Clinton administration, always including a group's right to hire co-religionists. President Bush extended the statutory protections by executive order to all federal antipoverty spending--involving billions of dollars distributed through at least eight federal agencies to thousands of faith-based providers.
The Supreme Court has yet to hear a case on the issue. But recent High Court rulings, such as Mitchell v. Helms (2000), have affirmed the right of religious organizations to accept government grants without becoming secular agents of the state. And in 2007, the Justice Department ruled that World Vision, an evangelical group, was free to hire only those who shared its Christian beliefs to administer a $1.5 million grant to help at-risk children. That decision seems consistent with the 1993 Religious Freedom Restoration Act, which forbids the federal government from placing "substantial burdens" on religious organizations. (It's also worth noting that, as required by charitable choice, these religious groups serve people of all faiths or of no faith.)
Largely forgotten in this debate is how the charitable choice law has fostered new alliances between government and faith communities to help the poor and marginalized. For instance, a significant number of the churches and religious charities tackling problems such as poverty, crime, drug abuse, and family breakdown are African American. Surveys show that African-American pastors and community leaders are the most enthusiastic about the new partnerships with government. They are also among the most religiously devout groups in the country. Hence the paradox of Barack Obama: America's first black president seems prepared to nullify the self-government and spiritual identity of black institutions.
There were hints of Obama's ambivalence toward religion even during his recent appearance at the National Prayer Breakfast. He lamented that faith has been used as "an excuse for prejudice and intolerance." He recalled that "wars have been waged" and "innocents have been slaughtered" over religion. By contrast, when George Bush first spoke at the National Prayer Breakfast in 2001, he did not warn the mostly Christian audience, gathered for coffee and danish, about religion's heart of darkness. "Millions of Americans serve their neighbor because they love their God," he said. "They do for others what no government program can really ever do: They provide love for another human being; they provide hope even when hope comes hard."
If President Obama agrees--if what he really admires about these good Samaritans is their "living, breathing, active faith"--then he'll allow them to live, breathe, and move without government dictating every step along the way. By pressing ahead with an agenda to restrict their freedom, he will only alienate countless neighborhood caregivers who cannot isolate their charitable work from their religious ideals.
Joseph Loconte is a senior research fellow at the King's College in New York City.