March 15, 2001
More than Neutrality?
Advocates of President Bush's charitable-choice plan have somehow managed to squeak by a basic premise of their argument -- that there is a unique therapeutic power of religious-based social programs. For this they offer personal anecdotes but no proof. Even Steven Goldsmith finally admitted this during a recent NPR interview in which he answered "no" when asked if there was hard proof of faith-based efforts being more effective.
With no proven effectiveness, why has the debate even continued? The problems of joblessness, homelessness, and drug and alcohol addiction are too high-stakes of a game to risk a total system overhaul, particularly one whose implementation creates unsolvable dilemmas and raises the most severe constitutional issues. Even the Bush administration has decided to postpone implementation of the program, conceding that the proposal "may need to be corrected in some areas."
The president has not offered additional funds for charitable choice programs -- only the elimination of guidelines that precluded religious groups from sponsoring programs if they couldn't help from commingling their religious teachings. Since the budget hasn't grown, as new religious programs open, secular ones will be closed.
Charitable choice requires that there always be a secular alternative, but even advocates concede that this may not always be possible in small communities, and that in any case secular program choices will diminish. It is abhorrent that we may force a person to choose between religious indoctrination and going without food or shelter.
The federal funding of religious programs has become a discussable matter only since Justice Black's "high and impregnable" wall between church and state, which long dominated legal thinking, has gradually been reinterpreted as one that puts religion on more "neutral" grounds with other speech. Charitable-choice advocates have tried to argue that religious groups have been victims of discrimination in competing for federal monies, but religious groups have been receiving federal funds and administering programs for decades. Neighborhood churches have been free to provide services; the only limitation was that they could not use federal funds to inculcate religious teachings. It is spurious to argue that their free-exercise rights are restricted because the government will not fund their religious teachings, even in the context of an assistance program. What changes with charitable choice is that religious groups are not just eligible to administer the programs but can make the programs themselves religious.
The mastermind of charitable choice was none other than John Ashcroft, the man who declared that in America "we have no king but Jesus." It is also no coincidence that the program was implemented by a man who once proposed a state Jesus Day while serving as Texas governor. Might it be that either of these men wants something other than just "neutrality"? The president has answered that himself on the multiple occasions he has said that religious groups should be our "first" alternative.
That's what has happened in California, where the state earmarked $5 million exclusively for faith-based programs -- secular needn't apply! The American Jewish Congress has filed suit, arguing that this is reverse discrimination against secular groups.
When challenged by the establishment clause, federal charitable-choice advocates say that they will be neutral. But what definition of neutrality would be compatible with the First Amendment? Funding of all religions equally? Funding in proportion to the general population? To the population in need? According to objective standards? And what would the standard be, and whom do we trust to make it?
For instance, consider a faith-based drug treatment program with the lowest recidivism rate of any group. Being the most effective, it would then presumably receive the most federal money and grow in infrastructure and influence relative to other religions -- all on the government's dime. That clearly would be an unconstitutional establishment of religion.
Should methods be considered? What if this religious group owed much of its success to sleep deprivation, unusual diets, chanting and group pressure? Should an endpoint be considered beyond mere recidivism? What if after treatment their lives consisted of dancing, living isolated from society, not speaking to their parents and soliciting funds in airports? Would it still deserve funding? Would cults be eligible, and who would define what is and isn't a cult? We don't want a public debate on whether the Church of Scientology is a bona fide religion.
What if the group taught hate or intolerance? The administration has already issued conflicting statements on whether the Nation of Islam would be funded. Does anyone expect that Christian groups that preach hatred of homosexuals might be excluded? Might some hates be more tolerated than others? The administration must assure the public it will not finance hate groups while at the same time maintaining "neutrality." These two positions are irreconcilable.
Religious leaders on the Christian right are voicing their concern, including Pat Robertson and Jerry Falwell. The establishment clause has most often been viewed as protecting citizens from having religion forced upon them. But it is also a potent way of keeping the government out of religion and insulating the autonomy of churches. Once a religious group accepts federal money, it will be subject to new government regulations and intense public scrutiny.
America has also enjoyed the benefits of its government being criticized by a strong religious community in the peace, antiwar and civil rights movements. As they become dependent on maintaining government grants, this autonomy to speak their conscience would likely erode.
The ultimate outcome of this matter, no doubt, will come not from the editorial pages of our newspapers but from our highest court. Hopefully, the words of Sandra Day O'Connor that "any use of public funds to promote religious doctrines (or) advance the religious message" violates the constitution, will be heeded when this case is heard.
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