Legislative Update on Separation of Church and State

Charitable Choice and The Faith-Based Initiative 

Charitable Choice

refers to programs through which the government to gives taxpayer dollars to religious organizations to provide public health or social services. Charitable choice has become one of the key struggles in church/state activities.  Advocates of church-state separation have nine major concerns with charitable choice:

  • Charitable choice violates the Establishment Clause of the First Amendment. By directly funding pervasively sectarian organizations, charitable choice constitutes clear government endorsement of religion.  The impossibility of separating the religious and secular messages and functions of pervasively sectarian institutions has led the Supreme Court to hold that direct public subsidies to pervasively sectarian organizations have a primary effect of advancing religion, and thus violate the Establishment Clause. The Supreme Court of the United States has never upheld direct government cash support for pervasively sectarian institutions.
  • Charitable choice threatens religious autonomy.  Direct government funding of houses of worship jeopardizes the autonomy of synagogues.  With government money come government rules, regulations, audits, monitoring, interference, and control.  Representative Chet Edwards (D-TX), a leading critic of charitable choice, has warned that "it will be a religiousnightmare to have federal agents, including IRS agents, auditing the finances of churches,synagogues and mosques across our land." 
  • Charitable choice jeopardizes a house of worship’s religious mission.  Reliance on government funding creates the temptation to mute the prophetic obligation of calling the government to account for its actions.
  • Charitable choice impinges on beneficiary rights. By subjecting social service beneficiaries to religious indoctrination when obtaining their government benefits from a pervasively sectarian entity, charitable choice violates the religious liberty of program beneficiaries.  Experience warns us that those seeking aid, the most vulnerable members of society, may be forced to either submit to religious coercion or go without food, shelter, or other services on which they depend.
  • Charitable choice lacks efficacy.  There remains little evidence that pervasively religious social service providers do a better job than secular, public, or religiously affiliated providers in meeting the needs of those seeking help.
  • Charitable choice permits government-funded employment discrimination.  Charitable choice permits religious institutions that receive government funds to discriminate in their employment practices on the basis of religion.  While the question of whether the Constitution permits federally funded religious entities to discriminate in hiring on the basis of religion is complex and ambiguous, government-funded discrimination is deeply problematic on a policy level.  The notion that a job notice could be placed in the newspaper seeking employees for a government-funded social service program run by a Protestant church that reads, "Jews, Catholics, Muslims need not apply" or "No unmarried mothers will be hired” is profoundly troubling.
  • Charitable choice can cause increased social divisiveness in America.  By calling for religious groups to apply and compete for government funds, charitable choice fosters divisiveness.  Politics will often determine who gets government grants meaning that the smaller, minority religious groups are likely to be left out.
  • Charitable choice diverts millions of dollars from existing social service providers to houses of worship.  Without a national commitment to substantial increases in funding, there is no guarantee that one more needy person will be helped.
  • Charitable choice may be used to justify abandonment of government social welfare programs.  Faith-based organizations cannot solve large-scale ingrained social problems like the lack of decent education and health care available to the poor.  Foisting greater social responsibility on religious organizations can erode the extraordinary role that government and the public sector must play in making America a fairer, safer, more equitable nation on behalf of all people.

Although we oppose any program which would funnel taxpayer money to religious organizations, we are supportive of non-monetary faith-based initiative programs with services such as sharing of best practices amongst organizations, technical assistance, and expedited creation of 501c3 organizations.

Perhaps the most controversial issue within charitable choice is whether government-funded faith-based organizations should be allowed to employ people of their own faith only (i.e. to refuse to consider applications of people of other faiths).  Under Title VII of the Civil Rights Act, employers are not allowed to discriminate in whom they hire based on religion; however, there is an exemption for religious organizations.  This exemption recognizes, for example, that in order to fulfill its mission, a synagogue may find it necessary to hire Jews.  However, the Civil Rights Act does not specify whether the Title VII exemption allowing religious organizations to hire members of their own religion still applies if the organization accepts government funding.  The question of whether a government-funded faith-based organization retains the Title VII exemption raises a wrenching tension between two principles: the religious autonomy guaranteed by the First Amendment and the fundamental notion that government money should not be used to discriminate.

On February 5, 2009, President Obama signed an executive order establishing the White House Office of Faith-Based and Neighborhood Partnerships and creating an Advisory Council of leaders of faith communities, heads of charitable organizations, and legal scholars, including RAC director and counsel Rabbi David Saperstein.  

Though the issue of hiring discrimination has yet to be resolved, President Obama announced his intent to adhere to constitutional standards and evaluate this issue with the help of the Advisory Council, Attorney General, and White House Counsel.  During the campaign, then-Senator Obama made clear he is attuned to concerns for the separation of church and state.  Speaking in July 2008 in Zainesville, OH, he said "If you get a federal grant, you can’t use that grant money to proselytize to the people you help, and you can’t discriminate against them – or against the people you hire – on the basis of their religion."

Church Participation in Political Campaigns

Federal tax law has been clear for decades: houses of worship, like other 501(c)(3) organizations, cannot legally engage in partisan politicking and retain their tax-exempt status while receiving tax deductible contributions. Religious leaders have an absolute right and obligation to use their pulpit to address the moral and political issues of the day. The only things tax-exempt houses of worship may not do are endorse or oppose candidates and use their tax-exempt donations to contribute to partisan campaigns. Current law limits groups from being both tax-exempt ministries and partisan political outfits. This simple and unambiguous provision of federal law has served as a valuable safeguard for the integrity of both religious institutions and the political process.

School Prayer

Students have the right to pray in public schools, but a government role in organizing and conducting prayer is impermissible. Private voluntary prayer is not only permissible, it is constitutionally protected. Such individual, voluntary prayer is different not in degree but in kind from officially selected and sanctioned prayers read over a loudspeaker on behalf of all students.

For more information, go to the RAC's School Prayer Issue Page.

School Vouchers

School vouchers and tuition tax-credits (which allow money that otherwise would have gone to the state or federal treasury to be saved by parents to fund the education of children in private schools) are by no means a solution to the problems that currently face public education. In fact, both seriously damage public education by re-channeling vital public funds to the private arena. Furthermore, both threaten the First Amendment's guarantee of religious liberty by inducing indirect government funding of sectarian institutions.

For more information, go to the RAC's School Vouchers Issue Page.