Fall 2002, Vol. 5, No. 3

Table of Contents
Fall 2002

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Articles in this issue

Our Muslim Neighbors

9/11 On Our Mind

Scandal Without End

After the Globe

Choosing Up Sides in the Middle East

Reading the Koran in Chapel Hill

Faith Based Administration

Amazing Graceland

Sex in the (Catholic) City

Faith Based Administration
By Dennis R. Hoover

To judge from news coverage, the "faith based initiative" has gone into retirement more times than Michael Jordan. In October, when members of Congress closed the books on yet another session without having voted on a new faith based bill, it seemed to many observers that the initiative was again in danger of being put out to pasture—this time, maybe permanently.

But it is a mistake—one made too often by journalists—to link the fate of new legislation too closely with that of the broader faith based initiative, the statutory origins of which began long before "compassionate conservatism" was adopted as a campaign theme, and which has the winds of constitutional interpretation at its back.

The legislative dimension (the attempt to expand on faith based laws already on the books) is different, and not as important, as the executive dimension (the ongoing regulatory implementation of the initiative, based on existing statutes and court rulings).

The faith based initiative is not a single policy, but rather a broad movement to make government tax, regulatory, and funding policies friendlier to faith based organizations (FBOs) that deliver social services—including those that do not secularize their programming and hiring practices. The most important policy component of the movement is "charitable choice," a set of rules about nonprofit competition for government funding that attempts to put FBOs on a level playing field with other private providers. Though it has issued more strongly from Republicans than Democrats, it was enacted on a bipartisan basis several times during the 1990s and 2000. The rules already apply to a large number of federal welfare, childcare, community service, and drug treatment programs.

In constitutional terms, charitable choice boils down to this: religious organizations can receive government money to provide public services without sacrificing their religious character provided (1) the funding scheme does not somehow give bonus points to organizations simply because they are religious, and (2) individual users of the services have meaningful choices among providers and are only exposed to religious providers voluntarily. It’s an approach to First Amendment interpretation that over the last two decades has been gaining ground at the Supreme Court, evidenced most dramatically by this summer’s landmark decision blessing the use of education vouchers at religious schools.

The appeal of the faith based initiative has always been strongest among what can only be described as a "religious center"—moderate evangelicals and Catholics, along with a substantial portion of black Protestants—and not among the religious right or left. However, ever since the Bush administration adopted the initiative as a signature domestic issue, bipartisanship has waned and centrist antecedents have receded as if in distant memory.

Journalists concentrating on the legislative side of the story have been whipsawed by its changing fortunes. In the honeymoon period (such as it was) of the Bush administration, passage of a bill embodying the president’s priorities—new tax incentives for charitable giving, expanded application of charitable choice rules, and new money for technical assistance for nonprofits—seemed, on the surface, like a gimme. But journalists should have seen the ideological opposition coming. The right was worried that the feds would restrict religious practices and hiring; the left was worried that they wouldn’t.

In the House, Republican control and loyalty to the president were sufficient to deliver a bill in July last year that conformed largely to the president’s vision. But in the Senate, where partisan control had switched to Democrats, the summer passed without a bill even being introduced.

Then came September 11.

The administration’s priorities abruptly changed. Compromise for the sake of national unity was the spirit of the moment. Increasing the sense of urgency was the fact that donations to many charities had dropped because giving had either been diverted via the terrorist attacks or reduced because of the faltering economy. "Bush is Said to Scale Back His Religion-Based Initiative" announced a New York Times headline October 14, 2001, after the White House signaled it would not oppose a Senate bill co-sponsored by Joseph Lieberman (D-CT) and Rick Santorum (R-PA) that abandoned the proposed expansion of charitable choice and concentrated only on tax cuts and technical assistance.

According to the Times, Senate Majority Leader Tom Daschle was open to bringing the bill up for a vote quickly. "Bill Advances Amid Religious Mood," the Boston Globe proclaimed confidently November 18.

But only a month later the pendulum swung the other way, and the Globe was reporting that even faith based-lite was dead for the year, collateral damage in a fight over an economic stimulus bill. In a New Year’s Eve editorial, the conservative Weekly Standard blasted Daschle for refusing to allow the bill to be considered in ‘01.

In the first few months of this year, the direction of the story became even more erratic. An upswing came January 15 when a report seven months in the making was issued by a diverse "Finding Common Ground" ( group of 33 civil libertarians, clergy, lawyers, and leaders of social service organizations. Led by former Democratic Senator from Pennsylvania Harris Wofford, the group issued a report on faith based initiatives that limited itself to areas of consensus, thereby ratifying the approach of Lieberman and Santorum.

Getting back on its horse, the next day’s Boston Globe announced, "Legislation on Track." The Dallas Morning News thought the time was right to press Daschle, issuing an editorial January 31 arguing that "getting half of a good idea passed is better than getting none of it. Senate Majority Leader Tom Daschle must hold to his promise to allow fair consideration of faith based legislation this session instead of holding it hostage to election-year politics."

Then, for a couple of days at the beginning of February, there was media speculation that Bush might be going wobbly, having just appointed the relatively low profile Jim Towey as head of the White House Office of Faith-Based and Community Initiatives, filling the post previously held by the very high profile John DiIulio. "Democrat Tapped to Head Bush Faith Initiative: Some Fear Effort Losing Momentum," read the headline on Rebecca Carr’s February 1 article in the Atlanta Journal-Constitution.

What’s more, as Larry Witham reported in the Washington Times, Towey would report not directly to the president (as had DiIulio) but rather to John Bridgeland, head of the newly formed USA Freedom Corps. Some interpreted this shift as an indication that faith based initiatives were being downgraded to mere volunteerism.

Only a few days later, however, coverage swung back into the red zone as journalists provided plentiful, friendly accounts of the official introduction of Lieberman and Santorum’s second-attempt bill. The Washington Post’s Dana Milbank wrote February 6 of the "compromise" as "likely resolving an issue that has bedeviled the administration for the past year."

The news was chock full of congratulatory phrasing. The "agreement revives the plan" determined James Gerstenzang in the Los Angeles Times February 8. That same day: a Houston Chronicle headline pronounced, "Faith-based Effort Gains Ground"; the Boston Globe’s Mary Leonard saw "a breakthrough for Bush"; and, most triumphalist of all, NPR’s Bob Edwards said, "The agreement ends a bitter partisan dispute that lasted nearly a year, and both parties are hailing the accord as a historic compromise."

Pronouncements in this vein were premature, of course, and none more so than the assertion that the bill "defuses a controversy over whether Congress might be put in a position of subsidizing religious discrimination by charities that receive government grants," as a Pittsburgh Post-Gazette editorial claimed February 12. In fact, as David Lightman noted in the February 8 Hartford Courant, liberal critics were not at all satisfied, because, while the bill did not explicitly permit FBOs to discriminate on religious grounds in hiring, it didn’t explicitly prohibit it either.

U.S. Representative Robert C. Scott, a Virginia Democrat and leading opponent of the faith-based initiative generally, and charitable choice in particular, told the Baltimore Sun February 8, "The language in the bill is a little slick. If the intent of the legislation is that groups cannot discriminate, let’s put that language in there."

One of the best overviews of the bill’s content came from Mei-Ling Hopgood in the February 7 Dayton Daily News. Hopgood noted rightly that the bill did nod vaguely in the direction of charitable choice by including "an ‘equal treatment’ provision that says no social service provider will be discriminated against because they have religious symbols on their walls, religious names in their titles, or religious missions in their chartering documents." But the line on charitable choice’s approach to hiring was not drawn clearly.

Critics wanted their view in ink—a deal-breaker for moderate and conservative proponents. And so it was that pressure from liberal Senators kept the bill bottled up in the Senate all the way through to the fall elections.

To be sure, there were bright spots for charitable choice along the way. Brightest was the July decision of the U.S. Supreme Court on vouchers. Coverage of the link with charitable choice was generally thin, but Jane Lampman’s Christian Science Monitor story explored both the scope and limits of its impact. "This decision by the Court together with the faith-based initiative will, in the long run, show that the roughly 50-year period of strict separationism is an aberration from what the First Amendment is about," James Skillen, president of the Center for Public Justice, told Lampman. Marc Stern, legal director for the American Jewish Congress, took a more qualified view: "They can try to put charitable choice on a voucher basis, but that’s difficult to do for practical reasons."

Later in the month, a federal judge in Wisconsin ruled in a closely watched case that it was constitutional (citing the Supreme Court’s decision) for government funds to flow to a strongly religious FBO called Faith Works because the funding mechanism was indirect, and thus analogous to vouchers. But the decision did not affect an earlier ruling by the same judge that invalidated a contract that had provided Faith Works direct funding.

By fall, with time running out on the Congressional session and legislators having much bigger fish (Iraq) to fry, journalists finally decided to turn their attention to the executive branch dimension of the story—the White House Office for Faith-Based and Community Initiatives and its satellite offices in five cabinet level departments, all of which Bush established at the beginning of his presidency. But journalists’ earlier obsession with the legislative side resulted in coverage of the executive side that failed to put the story into its proper statutory and legal context.

"President to Use Executive Orders to Implement Some Parts of His Proposed Bill Without Hill’s Consent" announced the Washington Post in an article by Mike Allen September 1. For the article’s last punch, Allen turned to Rep. Scott, who put such administrative actions on par with: "going to war without legislation" and "arresting people and holding them without charges without legislation" and "eliminating attorney-client privilege without legislation."

Two days later, the AP’s Laura Meckler joined in, arguing, "Working to implement President Bush’s stalled ‘faith-based initiative,’ five Cabinet agencies are rewriting rules into federal law that Congress has balked at. The rules will help churches and other religious groups obtain millions of federal social service dollars with few strings attached." And, on September 6, NPR’s Duncan Moon charged, "The Bush administration is taking a broad view of the separation of church and state, far broader than in any bill likely to make it out of Congress."

These reports inspired a spate of editorial hand-wringing. On September 9, citing Meckler’s AP piece, a San Antonio Express-News editorial denounced what it said was an Administration plan to use "tax dollars in programs that make prayer a central element" without Congressional approval. These sentiments were echoed by others, including the Allentown Morning Call editorial board, and the St. Petersburg Times’ Robyn Blumner, who fumed, "Rather than fight these differences out on a legislative stage, Bush is using his executive authority to bypass Congress."

What’s going on here?

Soon after it was created, the White House Office of Faith-Based and Community Initiatives directed federal departments that enter into contract or voucher agreements with private providers of social services to review their practices vis-à-vis FBOs. The report that resulted (entitled "Unlevel Playing Field") alleged that in numerous ways the principles of charitable choice were not being implemented.

This year, the relevant departments began instituting various changes they believe bring them into line with the letter and spirit of existing law. While these administrative changes are certainly controversial, and should be covered as such, blanket statements about them being an "end run" around legal sanction are not warranted.

Even in areas where no specific "faith-based" language exists on the books, it is at least debatable whether, in light of recent trends in constitutional interpretation, agencies have discretion to adopt charitable choice-like policies. Moreover, Congress has given bureaucratic faith-base-istas additional statutory footholds just in the past year. As noted in Mary Leonard’s report in the July 21 Boston Globe, the new federal education law enacted in January "is unusual because it specifically invites faith-based and community groups to compete for education grants that by law or practice have traditionally gone to public schools. For example, religious groups are no longer barred from running 21st Century Learning Centers, an after-school program budgeted this year at $1 billion."

The real faith-based story in 2002 was not whether bureaucratic action conformed to the latest twists and turns in Congressional debate over the president’s hapless, watered-down bill. Rather, the story was the nitty-gritty of actual implementation. In terms of existing public policy and constitutional standards, most of the train has already left the station.

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