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What is "charitable choice"?
So-called "charitable choice" provisions have been put forth as a
solution to the very real problems associated with delivering social services to
America’s neediest citizens. "Charitable choice" provisions require
the government to give religious institutions an equal footing when it seeks
bids and grants contracts for the private-sector provision of government-funded
social services (such as providing food or job training). The opening of this
process to pervasively sectarian institutions (churches, synagogues, mosques) is
deeply troubling because many "charitable choice" plans have been
put forth without adequate safeguards to ensure that religious activity,
including proselytizing, is not a part of that service delivery.
This is a major departure from previous practices. While it is true that
religiously-affiliated organizations (such as Catholic Charities) have
traditionally received government funds to deliver social services, government
regulation—safeguards—have always ensured that such organizations do not
integrate religious activities into their delivery of government-funded social
services or discriminate in hiring staff to provide such services.
ADL has serious concerns as to whether "charitable choice"
proposals can be implemented without raising serious Constitutional and
practical questions. The League will continue to raise these concerns while at
the same time urging the inclusion of adequate safeguards that can help avoid
most obvious problems.
| Q. How is "charitable choice" related to the President’s White House Office of Faith-Based and Community Initiatives? |
A. One purpose of the President’s White House Office of Faith-Based and
Community Initiatives is to remove "barriers" in the path of
faith-based organizations that wish to provide government-funded social
services. By actively seeking out and identifying barriers to the participation
of faith-based organizations in the delivery of social services—and working to
identifying rule changes to help those communities—the Office will assume
responsibility for "charitable choice."
Concerns exist about how this new White House Office can function without
running afoul of the principle of church-state separation. In that light, ADL
will urge the Office to carry out its mission with sufficient regard to the
safeguards that have traditionally prevented faith-based organizations from
integrating religious activities into their delivery of government-funded social
services.
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| Q: Without "charitable choice" can religiously-affiliated
organizations continue to receive government support? |
A. Prior to 1996, religiously-affiliated organizations (Jewish
Federations, Catholic Charities, Lutheran Social Services etc.) could receive
government money to administer social programs, but pervasively sectarian
(churches, synagogues, mosques) institutions could not. Religiously-affiliated
organizations, while affiliated with religious denominations, were run with
adequate safeguards: as separate non-profit organizations that provided needed
services without infusing a religious component.
Thus, with appropriate safeguards, many religiously-affiliated organizations
that deliver social services, such as Catholic Charities and Jewish Family
Services, can (and should) continue to receive government support.
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| Q: What "adequate safeguards" are needed to keep religious freedom
and prevent government and religion from becoming entangled? |
A. ADL has suggested safeguards that are designed to protect religious
freedom and prevent government and religion from becoming entangled. Because
they are designed to ensure that constitutional guarantees of religious liberty
are protected, these safeguards are non-negotiable. The safeguards must ensure
that:
- No program beneficiary is subjected to unwanted and unconstitutional
proselytizing when he or she receives government-funded social services;
- Taxpayer money does not fund religious discrimination in the hiring and
firing of people who will deliver the services;
- Secular alternatives to religiously provided services are readily
available, and that those who prefer secular alternatives are made aware of
them and have realistic and convenient access to them;
- Proper firewalls between government-funded services and the core religious
activities of a religious organization are developed, so that taxpayer
dollars are not channeled into other religious activities of sectarian
organizations (as a practical matter, this can best be implemented through
religious organizations’ establishment of a separate corporate structure
which would distinguish a sectarian religious entity from its
government-funded social welfare organization);
- Program recipients comply with all requirements and restrictions imposed
upon all government-funded activity by the Religion Clauses of the First
Amendment to the United States Constitution; and
- Extremist, terrorist or hatemongering groups are not able to receive
government money.
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| Q: Does opposing "charitable choice," mean opposing the receipt of
government funding by religiously-affiliated social-service
organizations, such as the Jewish Federations? |
A. No. Regardless of whether "charitable choice" exists, religiously-affiliated
social service agencies such as Lutheran Social Services, Catholic Charities and
Jewish Federations would continue to receive their funding. Notably, these
organizations have extensive experience and success with the kind of safeguards
discussed above.
ADL is confident that such organizations would continue to thrive, as they
have for decades, with the old safeguards.
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| Q: Does opposing "charitable choice" result in discriminating
against religious organizations that just want to compete fairly for government
contracts? |
| A. No. Religion plays an important and unique role in our society. Indeed,
the framers of the Constitution thought that religion was so important that, by
writing the Establishment Clause of the First Amendment to the Constitution,
they tried to prevent government from entangling itself with religion. The
special safeguards ADL wishes to see included in the law reflect this tradition.
Moreover, under the old safeguards, many religiously-affiliated social services
organizations, such as the Jewish Federations, competed extremely successfully
with non-religiously-affiliated organizations for government contracts.
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| Q. Since the passage of Welfare Reform Act of 1996, the first federal
"charitable choice" program, what has been going on in the states? |
A. The Welfare Reform Act of 1996 was the first federal "charitable
choice" program. Since then, many programs involving hundreds of religious
organizations have received funds. States such as Texas, Indiana, Wisconsin and
Ohio quickly integrated "charitable choice" rules into their state’s
social services, extending faith-based contracting to every program funded by
the state. Other states have followed and others still are in the process of
developing rules to implement charitable choice provisions (e.g., California).
"Charitable choice" provisions presently govern the relationship of
states and private-sector providers when they enter into service relationships
under the Temporary Assistance for Needy Families (TANF) program (which replaced
AFDC), as well as Social Security Supplementary Income programs, food stamps and
Medicaid programs.
"Charitable choice" has given rise to several lawsuits. For
example, one lawsuit in Texas alleged that a job training program used
proselytizing and teaching from the Bible to fulfill its contract with the state
of Texas. Another suit, in Kentucky, alleges that a state-funded children’s
service provider fired a worker because she did not share her employer’s
religious beliefs about homosexuality.
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| Q: Does "charitable choice" violate the Establishment Clause of the
U.S. Constitution? |
A. Probably yes. The Supreme Court has not yet addressed the
constitutionality of "charitable choice" programs. In other contexts,
the Court has ruled that pervasively sectarian institutions, such as
houses of worship, cannot receive taxpayer dollars because government funding
and monitoring of these institutions would violate the Establishment Clause.
Therefore, ADL believes that "charitable choice" plans—without the
safeguards discussed above—would allow government funding to be used to
promote religious beliefs, something the Establishment Clause prohibits.
Moreover, allowing pervasively sectarian institutions to take the
place of the government as the provider of essential services in a community
will likely result in the kind of coercion that the Establishment Clause was
designed to prevent. "Charitable choice" could result, for example, in
Jewish families being encouraged to listen to Christian evangelists in order to
receive government-funded assistance. With the appropriate safeguards in place,
however, there would be no risk of violating the Constitution.
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| Q: Is "charitable choice" bad for public policy? |
| A. Yes, without the safeguards discussed above. Otherwise, "charitable
choice" might allow for government-subsidized employment discrimination.
Since religious institutions are exempt from the nondiscrimination requirements
of Title VII and other anti-discrimination laws, "charitable choice"
may allow a recipient of government funds to refuse to hire someone on the basis
of religion.
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| Q: Is "charitable choice" bad for religion? |
A. Without adequate safeguards, "charitable choice" will be harmful
to religion, for many reasons:
- "Charitable choice" raises serious concerns about the
possibility of government entanglement with religious practices and is
likely to result in unwelcome, divisive competition among religious groups
before elected officials for scarce government funds. Many religious
organizations have been rightly wary of "charitable choice,"
concerned that their religious ministries would be subject to intrusive
government regulation, including audits, reporting requirements and
compliance reviews. Indeed, religion has thrived in America precisely
because the government is prohibited from endorsing or burdening religious
practice.
- The idea of government inspectors monitoring funded programs that take
place in houses of worship is deeply disturbing. The specter of government
auditing a house of worship’s financial books and records is chilling.
- While "charitable choice" will allow some sectarian activity
during the delivery of social services, strict rules about proselytizing are
supposed to be in place (though we are doubtful that adequate safeguards
exist under the present legislative scheme). Thus, "charitable
choice" would require many law-abiding religious people -- many who
have devoted their lives to spreading a spiritual message through words and
good deeds -- to muzzle themselves about their most fundamental beliefs
while attempting to fulfill a deeply spiritual mission. Many religions are
by their very nature evangelical; to require that their adherents not
proselytize in these programs clearly interferes with their spiritual
missions -- ultimately compromising their intended power to inspire and
uplift their beneficiaries.
- Churches and synagogues have traditionally provided a wide array of
community health and welfare services as part of their sacred religious
missions. Members of their congregations and communities have supported them
by the countless hours of volunteer services and social action. Receipt of
government funds may have a negative impact on volunteer contributions and
involvement of church and synagogue members.
- The receipt of federal funds and fierce competition for scarce resources
may also compromise religion's historic and extremely important role as an
important and independent social critic.
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