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The Union of Church and State

As co-directors of the Legal Tracking Project of the Roundtable on Religion and Social Welfare Policy, GW Law Professors Ira C. Lupu and Robert Tuttle are tracking and analyzing legal developments in government aid to faith-based social welfare organizations. Their work for the roundtable, funded by a grant from the Pew Charitable Trusts, also asks for their interpretation of constitutional law developments in areas such as aid to nonpublic schools.

Lupu, the F. Elwood and Eleanor Davis Professor of Law, and Tuttle, JD ’91, also a professor of law at GW, explain the foundation of their work in the following article.

On the Cusp of New Understandings:
The “Faith-Based Initiative” and Constitutional Law

By Professors Ira C. Lupu and Robert Tuttle

During the 2000 presidential campaign, both Al Gore and George Bush supported an increase in the involvement of grassroots organizations—both religious and nonreligious—in the provision of social services, especially to those in greatest need. Immediately upon taking the oath of office, President Bush started to implement his “Faith-Based and Community Initiative.” By establishing offices for the initiative in the White House and in five federal agencies, the president hoped to encourage grassroots organizations to participate in public welfare programs, and to remove bureaucratic obstacles that impeded such participation. While overshadowed by the tragedy of September 11, the initiative has continued and even gained momentum over the past several months.

Religious organizations are certainly not newcomers to the field of social services. Before the New Deal programs of the 1930s, faith-based charities provided a large portion of social welfare services, from orphanages and hospitals to soup kitchens. Sometimes these charities received public support—indeed, the U.S. Supreme Court’s first decision interpreting the Establishment Clause, Bradfield v. Roberts (1899), upheld a federal grant to a Catholic hospital—but often they did not.

By the time substantial amounts of government money began to flow into social welfare programs, the Supreme Court’s interpretation of the Establishment Clause had erected a “wall of separation” between religious institutions and the state. In a series of decisions focused on public support for religious schools, and religious exercises in public schools, the court severely limited the interaction of church and state, adopting a doctrine that we call “Separationism.” The court banned government-sponsored prayer and Bible reading in public schools, holding that the Establishment Clause prohibited the government from encouraging or engaging in religion. The court also held that public finances may not flow to any institution that engages in religious worship, instruction, or proselytizing. Because courts deemed parochial schools to be “pervasively sectarian” institutions—religious and secular instruction were woven together inseparably—these schools were ineligible to receive government funds.

Although government-sponsored religious expression continues to be strictly limited…the court has greatly relaxed earlier restrictions on public support for parochial schools—as long as the support is part of a program that offers benefits equally to religious and nonreligious private schools.

Although the court developed its Separationist interpretation of the Establishment Clause in cases involving public and parochial schools, administrators of government social welfare programs took the interpretation to heart. Separationist rules soon governed the involvement of religious institutions in publicly supported social services. Specifically, the rules borrowed the court’s category of “pervasively sectarian” entities, and excluded from participation any entity that mixed religious instruction or worship in its welfare programs. These rules went even further, however, and prohibited all financing of institutions that engaged in religious worship, instruction, or proselytizing, whether or not the religious activity was intermingled with the government-supported services. Indeed, the rules required any entity that received public funds to cleanse itself of nearly all traces of its religious identity, down to the attire of staff and images on the walls. As a result, the religiously affiliated institutions that did participate in public welfare programs gradually became secularized, little different from nonreligious or governmental service providers. Many faith-based organizations, however, refused to (or were unable to) shed their religious characteristics, and so were ineligible to receive government funding.

Starting in the early 1980s, Separationism’s firm grip on the Establishment Clause began to weaken. The shift can be traced to a number of sources: the rise of Evangelical Protestantism as a political movement; a change in the Supreme Court’s membership; growing religious pluralism, which reduced the significance of traditional Protestant/Catholic divisions; and a widely shared sense that Separationism had become excessive. The court’s first significant move away from Separationism came in Widmar v. Vincent (1981), a case involving a state college’s rule that barred religious student groups from using classrooms for meetings, even though nonreligious groups were permitted to use the rooms. The college defended its rule by arguing that the Establishment Clause required the policy, but the court held that the Constitution requires neutrality between religion and nonreligion in access to a public forum.

Over the past two decades, Widmar’s Neutralism has been overtaking Separationism as the dominant motif in most Establishment Clause cases. Although government-sponsored religious expression continues to be strictly limited (as in the decisions holding unconstitutional prayer at public school graduations and sporting events), the court has greatly relaxed earlier restrictions on public support for parochial schools—as long as the support is part of a program that offers benefits equally to religious and nonreligious private schools. In Mitchell v. Helms (2000), the court upheld a program that loaned computers and audio-visual equipment to private schools, including religious schools. And in Zelman v. Simmons-Harris (2002), the court upheld the Cleveland school voucher plan, which permitted students to direct government tuition payments to a variety of schools, public and private, religious and nonreligious.

In the context of publicly financed social services, the court’s turn toward Neutralism opened new avenues for cooperation between government and religious organizations. Although programs from the late 1980s and early 1990s permitted faith-based organizations to receive government financing for family planning and child care services, the most significant legislative embrace of Neutralism came in the 1996 welfare reform legislation. The Personal Responsibility and Work Opportunity Act of 1996 adopted “charitable choice” provisions for a wide range of government-financed social services. The charitable choice provisions prohibit agencies from discriminating against faith-based providers in awarding grants and contracts for social services; permit faith-based providers to retain their religious identity; and prohibit entities that receive government funds from using the funds for worship, religious instruction, or proselytizing. Faith-based providers are allowed to prefer co-religionists in hiring decisions but may not discriminate on religious grounds in serving beneficiaries. Congress has enacted similar provisions in other social welfare programs since 1996, including substance abuse treatment.

Legislation proposed in 2001 (the Community Solutions Act, H.R. 7) would have extended charitable choice provisions to all federally supported social service programs. The House passed the legislation, but it stalled in the Senate. Concern about employment discrimination by faith-based organizations, and a number of other church-state issues, derailed the legislation.

Although the failure of H.R. 7 was a setback for the Bush administration’s Faith-Based and Community Initiative, the administration has continued to press the initiative. Relying on the Neutralist-inspired theme of a “level playing field” for religious and nonreligious entities, the administration has identified and started to eliminate rules that impede the participation of religious organizations in social welfare programs. In addition, the administration has implemented several programs, including the Compassion Capital Fund, to actively encourage grassroots religious and community organizations to participate.

In their rush to create this “level playing field,” however, supporters of the Faith-Based and Community Initiative often ignore important limits that the court has placed on Neutralism. A plurality of four justices in Mitchell v. Helms endorsed a broad form of Neutralism, holding that the Establishment Clause requires no more than equal treatment for religious and nonreligious organizations. The concurring opinion of Justices O’Connor and Breyer, necessary to the outcome of the case, rejected the idea that neutrality is the sole criterion in Establishment Clause doctrine. Instead, the concurring Justices said that government may directly finance a religious institution’s social services only if the program a) is religion-neutral, and b) provides safeguards to prevent the funds from being diverted to specifically religious uses. In Zelman v. Simmons-Harris, the court upheld a program that allowed public funds to be used for faith-intensive activities—including religious education classes and worship—but only on condition that the beneficiaries were free to choose between secular and religious schools. The beneficiaries’ free choice to use the voucher at parochial schools, the court reasoned, absolved the government from responsibility for any religious training the students might receive.

The recent decision in Freedom from Religion Foundation v. McCallum (W.D. Wisc. 2002) starkly displays the important distinctions developed in Mitchell and Zelman. The case involved a faith-intensive substance abuse treatment center, Faith Works, which received government support through two different programs. Under the first program, Faith Works received a lump sum grant from Wisconsin’s Department of Workforce Development in return for its agreement to provide substance abuse and employment training services. Citing Mitchell, Judge Barbara Crabb held that this grant violated the Establishment Clause; the government funds were being used to support Faith Works’ explicitly religious methods in its treatment program, and the Establishment Clause forbids the government to directly subsidize such methods.

In the second program, Faith Works entered into a contract with the Wisconsin Department of Corrections in which Faith Works agreed to provide substance abuse treatment for offenders under DOC control, and DOC would reimburse Faith Works for the services actually rendered. Relying on the Supreme Court’s decision in Zelman, Judge Crabb upheld the DOC contract. She found that the Workforce Development grant and the DOC contract differed in one crucial respect: While the former was a direct grant, paid to the religious organization whether or not anyone actually used the service, the DOC contract depended entirely on the offenders’ choice to use Faith Works. Although DOC officers might recommend Faith Works, the offenders were always free to select a nonreligious treatment provider, and Faith Works only received money when offenders chose to use its services. Following Zelman, Judge Crabb found that the offenders’ free choice to accept or reject services from Faith Works disconnected the government from responsibility for any religious training received by offenders in the Faith Works program.

The McCallum decision suggests a few of the legal complications that face supporters of the Faith-Based and Community Initiative. First, in programs that involve direct financing of faith-based service providers—as in Mitchell and the Workforce Development grant in McCallum—the crucial line between secular and religious methods will be difficult to draw. Faith Works’ program, which required participants to make explicit religious commitments, is an easy case. Other programs, such as 12-step alcohol or drug treatment, also involve intense personal transformation, but may not include worship or instruction in a particular religious tradition. Are these programs sufficiently secular to receive direct government support, or are they religious in ways that render them ineligible?

Second, the rhetoric of neutrality and the “level playing field” fits uneasily with continuing claims that religious institutions deserve special protections. Should religious institutions that receive public financing be permitted to maintain their privilege to favor co-religionists in employment decisions? H.R. 7, the most recent attempt to enact broad charitable choice provisions, foundered on just this concern. Opponents of charitable choice argue that such a privilege makes the government complicit in discrimination, while supporters contend that the privilege is necessary for religious service providers to retain their character, and thus the moral passion that motivates their service.

Third, Mitchell and Zelman make clear the contours of the federal Constitution’s Establishment Clause, but many states have adopted constitutional provisions that effectively enact the strong Separationist policies enforced by the U.S. Supreme Court from the 1940s to the late 1970s. Many difficult legal questions surround the intersection of federal and state constitutions in this area. Should states be free to adopt different policies on church-state relations than the federal government? Or should the Supreme Court’s interpretation of the U.S. Constitution trump inconsistent state provisions?

The Faith-Based and Community Initiative presents a provocative interaction between political agendas and evolving norms of constitutional law. We are privileged to have received a grant that supports our research in this exciting field of law, which now stands at the cusp of new understandings of the relationship between government and religious institutions.

The opinions expressed here are solely those of the authors. For further information about recent developments in the relationship between government and faith-based social services, see the roundtable web site: For further detail about the general history of Establishment Clause doctrine sketched here, see authors’ article The Distinctive Place of Religious Entities in Our Constitutional Order, 47 Villanova Law Review 260 (2001).

Creating Order Out of Confusion

From federal to state to local levels, there is much information to be assembled to gain a full picture of the status of government aid to faith-based initiatives. Project co-directors Chip Lupu and Bob Tuttle are providing what they call a reporting and clarifying role to explain the current state of government aid to faith-based organizations.

Robert Tuttle joined the faculty in 1994. After graduating from the Law School in 1991, he earned a PhD in religious ethics from the University of Virginia. Tuttle teaches in the areas of property, trusts and estates, jurisprudence, and professional responsibility. His research and writing interests include legal ethics, law and religion, and moral philosophy. He serves on the board of the Division for Church in Society of the Evangelical Lutheran Church in America and also serves as legal counselor to the ELCA Bishop of Washington, D.C. Tuttle is the recipient of the Distinguished Faculty Service Award, voted by the 2000 graduating class.

Ira C. Lupu, the Law School’s F. Elwood and Eleanor Davis Professor, joined the Law School faculty in 1990. After graduating from law school, where he was case editor of the Harvard Law Review, he practiced law with the Boston firm of Hill & Barlow and then joined the law faculty at Boston University, where he taught from 1973 to1989. During that time, he also served as a visiting professor at Northeastern University and at the University of California-Berkeley. In 1989-90, he was the professor-in-residence on the Appellate Staff of the Civil Division of the U.S. Department of Justice Religious Institutions. He is a nationally recognized scholar in constitutional law, with an emphasis in his writings on the religion clauses of the First Amendment.

Because of the numerous initiatives at varying levels of government, confusion sometimes results, Tuttle says. “Our job is to tell the legal and constitutional side of the story in a way that’s comprehensive and accessible to people, because I think people get little snippets and inflate that to be the whole story.”

Along with studying FBOs at the federal and state levels, Lupu and Tuttle also will focus on county and city levels. “Probably the most interesting, but least accessible, part of the story, is what’s happening in the state and local governments where there are actual contracts, where there’s money changing hands, where there are faith-based institutions running social services,” Lupu says. “We’re going to uncover this information, partly by tracking the research of others on public policy and the effectiveness of FBOs. We’re going to look at the contracts between government and FBOs, the constitutionally crucial question of how these contracts are enforced, the extent to which faith is permitted or prohibited in those programs, and everybody’s legal understandings of what’s happening.”

Their efforts also will help to provide some background as to how the most recent developments regarding FBOs evolved. It’s both a federal story and a Congressional story, Lupu says. “Bush’s executive orders included an order to five federal agencies to have their own in-house faith based officer and each of those officers is doing work inside his or her own agency to remove impediments to FBO participation.” Likewise, he adds, Senators Joseph Lieberman (D.-Conn.) and Rick Santorum (R.-Pa.) are sponsoring in Congress a piece of legislation regarding FBOs.

By the end of the project, Lupu and Tuttle hope to have created order out of a mass of untracked information. “We’re just trying to figure out what’s going on,” Tuttle says. “Much of the confusion in the field is produced by conventional, perceived wisdom that may or may not have any connection to current legal realities. We also see ourselves writing for legal academics and judges to disentangle the message, which will require a technical understanding of the way constitutional law has developed over time. In part, the lawyers, academics, and judges who write, think, and litigate these kinds of cases need some better guidance than what’s out there.”

It’s the practical concerns of people in the field that drive their work, Lupu says. “We want to figure out not only what judges and lawyers think about church-state issues, we want to figure out what people are doing in the field and how church-state ideas inform their choices. To help government and FBO administrators think about these issues, of course, will also help clarify the subject in the legal academy.”

The information and quotes in this article have been excerpted from the Web site of The Rountable on Religion and Social Welfare Policy.