The Case Against 'Charitable Choice':
Why Government funding for faith-based social services endangers religious freedom


Proponents of religious freedom in America have long recognized that government and religion make poor bedfellows. As Justice Hugo Black observed, "a union of government and religion tends to destroy government and degrade religion." In recent years, however, legislators at both the Federal and state levels have been proposing initiatives that fly in the face of this hard-earned lesson. Like many bad ideas, these initiatives often have names that offer no hint of their real impact. One such bad idea has been dubbed "charitable choice" by its supporters.

The Federal "charitable choice" measure, which was first adopted in 1996 as part of the welfare reform bill, mandates that whenever the Federal Government allows private organizations to assist in the distribution of welfare benefits, the Government must also allow religious organizations and sectarian institutions, which integrate religious practices into their programs, to have an equal opportunity to participate.1 If the Federal Government decides to let a private organization provide counseling services, for example, then the Government must also consider the bids of religious institutions when deciding with whom to contract.

A growing number of politicians currently favor an expanded church-state partnership in a wide range of social welfare activities. Some who support "charitable choice" do so in an effort to downsize the Government's commitment to anti-poverty programs or as part of an effort to shift the cost of providing such services to faith-based organizations. Legislation has been introduced in Congress to extend the "charitable choice" concept beyond welfare programs to such areas as job training, juvenile delinquency prevention initiatives, and drug rehabilitation programs. Further, numerous similar programs, also calling themselves "charitable choice," have been introduced in state legislatures across the country.

Even in these days of unprecedented prosperity, millions of Americans live in poverty and must meet the challenge of getting by -- not to mention moving up in the world -- with little assistance from the Government. ADL recognizes that, while state and Federally funded programs like food stamps and welfare provide much needed assistance to the nation's poor, many families rely on charities -- including those affiliated with religious organizations. In many inner cities, some of the most effective groups making a real difference in the lives of the community are religious institutions, whose outreach programs provide food, shelter and counseling to even the most destitute.

Background: Government Funding for Religious-Affiliated Organizations

Government funding for religious organizations providing social services is not new. Under current law, government support for religiously affiliated soup kitchens, homeless shelters, counseling and job-training programs is reflected in the provision of tax benefits for certain individual and corporate charitable contributions. In addition, religiously affiliated social service agencies, such as Lutheran Social Services, Catholic Charities and Jewish Federations, receive very substantial direct government subsidies for providing a variety of quasi-governmental services if they operate under certain structural restrictions which guard against the possibility of any religious coercion. These separately incorporated, religious-affiliated organizations have played an essential role in combating poverty and providing housing, education and health care services to the poor, elderly, homeless and other people in need.

'Charitable Choice' is Unconstitutional

Before the passage of "charitable choice," in order to receive government funding, religious organizations were required to establish firewalls between their social service initiatives and their sectarian mission programs to ensure that these services were provided without a specific religious message and with appropriate constitutional safeguards. Previously, religious organizations had to establish a separately incorporated agency and offer services to all without regard to religious belief, and were not permitted to discriminate in the hiring of staff.

"Charitable choice" programs plainly violate the First Amendment's prohibition against funding that promotes religious beliefs. Allowing sectarian institutions to take the place of 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" threatens to subject a large segment of American society to religious coercion -- at taxpayers' expense. Needy citizens may be directed to religious institutions where they may feel pressured to participate in religious practice or proselytization in order to receive their benefits. "Charitable choice" could result, for example, in Jewish families being encouraged to listen to Christian evangelists in order to receive government assistance.

Although many of society's most needy are likely to be the least informed about their rights -- including their right under "charitable choice" to request another benefit site -- the law does not require that service providers inform beneficiaries of their right to attend non-religious programs. A drug addict seeking court-ordered rehabilitation counseling may be directed toward a faith-based program without understanding that he has the option of attending a secular alternative instead. Once in the program, he may keep quiet about his own beliefs rather than risk being sent back to jail.

'Charitable Choice' is Bad Public Policy

"Charitable choice" explicitly creates, for the first time, the possibility of Federally-funded employment discrimination on the basis of religion. Since religious institutions are exempt from the nondiscrimination requirements of Title VII and other anti-discrimination laws, "charitable choice" essentially amounts to a form of government-subsidized religious discrimination. For example, a Presbyterian Church receiving funds for a welfare program could refuse to hire non-Presbyterians to administer the program. Further, even racist or anti-Semitic groups -- such as the Nation of Islam or Christian Identity -- may be able to receive Federal money to provide benefits and services.

As they do under current law, religious institutions that receive. Federal funds under "charitable choice" programs should be required to comply with the same standards and regulations that currently govern existing social service agencies. These necessary quality-control requirements may include professional training standards, disability access requirements, and health, safety, and fire regulations.

'Charitable Choice' is Bad for Religion

Finally, "charitable choice" threatens the health of American religious institutions themselves. Religion has thrived in America precisely because the government is prohibited from endorsing or burdening religious practice. "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.

On one hand, the specter of government inspectors monitoring those funded programs that take place in houses of worship is deeply disturbing. On the other hand, "charitable choice" would also seem to require 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 dilutes their spiritual missions -- ultimately compromising their intended power to inspire and uplift their beneficiaries.

Moreover, churches and synagogues have traditionally provided a wide array of community health and welfare services as part of their sacred religious missions. They have been supported by the countless hours of volunteer services and social action by members of their congregations and communities. Receipt of government funds may have a negative impact on volunteer contributions and involvement of church members. Receipt of Federal funds and fierce competition for scarce resources may also compromise religion's historic role as an independent social critic.

"Charitable choice" allows for an unprecedented entanglement of government and religion -- to the detriment of both. Rather than abandon our nation's great tradition of separation of church and state which has allowed religion to flourish in the United States, the Government should encourage increased private subsidies for religious ministries, including tax incentives for charitable contributions. Every needy American should be able to receive help without being subjected to religious coercion.

2001 Anti-Defamation League