Q: What is "charitable choice"?

A. 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.

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.

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.

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.

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.

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.

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.

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.

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.