Vol. 15 No.9 (September 2005), pp.876-883

 

SANCTIONING RELIGION? POLITICS, LAW, AND FAITH-BASED PUBLIC SERVICES, by David K. Ryden and Jeffrey Polet (eds). Boulder, CO: Lynne Rienner Publishers, 2005. 237pp. Hardcover. $59.95. ISBN: 1-58826-319-3.   Paper. $22.50. ISBN: 158826-343-6

 

Reviewed by Caren G. Dubnoff, Department of Political Science, College of the Holy Cross. Email: cdubnoff [at] holycross.edu

 

SANCTIONING RELIGION? POLITICS, LAW, AND FAITH-BASED PUBLIC SERVICES examines the legal issues raised by President Bush’s faith-based initiative, a program central to Bush’s domestic agenda.

 

The faith-based initiative has its origins in a little-noticed provision to the 1996 Welfare Reform Act, “charitable choice,” mandating that religious groups have equal access to federal funds to deliver social services. Government funding of social services programs run by religious organizations is not new, but funding has previously been confined to those religious organizations that can and do separate their participation in government funded programs from their religious missions. “Charitable choice” removes the separability requirement, thereby opening participation to smaller and more overtly faith-based groups and religious congregations. President Bush praised the transformative powers of religion, but consistent with “charitable choice” held that proselytizing is forbidden.

 

The faith-based initiative immediately generated considerable controversy, first because it has been perceived as a threat to a core Establishment Clause principle – the prohibition against government-sponsored religious  indoctrination – and second, because it allowed exemptions from anti-discrimination laws, thus opening the specter of widespread hiring discrimination.

 

David K. Ryden and Jeffrey Polet bring together eight case studies of faith-based programs, ranging in purpose, operation and organization, some fitting the traditional model and others not. Thus, they vary in the legal issues they bring up. They represent the work of scholars from an array of different disciplines and, to some extent, from different viewpoints. Ryden and Polet provide a short introductory chapter and brief summaries before each of the collection’s Parts. They also have written a chapter presenting the historical, political and legal background of the faith-based initiative, and a concluding chapter that provides their own views of the constitutional issues involved. Ryden also wrote one of the case studies and collaborated on a second.

 

The objective, set out in the introductory essay, is to generate a more thoughtful, tempered assessment of the constitutionality and propriety of the faith-based initiative, in contrast to the current public debate, which in the editors’ view has been too theoretical and characterized “by simplistic, overblown rhetoric.” This is accomplished by providing an empirical basis for assessing the faith-based initiative, a methodology that leads to a more realistic and tempered debate. [*877] They take pains to point out the varied nature of the case studies and perspectives regarding the initiatives’ constitutionality and wisdom. Specifically referring to faith-based initiatives, Ryden and Polet indicate that they themselves disagree regarding “their wisdom as policy, and their constitutional soundness” (p.7). One could easily infer from this introduction that a well-balanced airing of the issues will follow, where the reader is left to draw objective conclusions, although some of the language in the essay hints otherwise. For example, the editors mention “litigation involving the validity of antireligion state constitutional clauses” (p.8) with no indication that “antireligion” is a loaded word – one that separationists (myself, included) do not accept as valid. They also write that constitutional doctrine is often premised on a “rather thin” vision of religion, again a legitimate position for an advocate, but not one accepted by both sides of the issue.

 

In Chapter 2, Ryden and Polet place the initiative in a broader legal, historical and political context. They summarize the current state of the law, offering three observations. First, support for the separation principle that initially informed the Court’s Establishment Clause jurisprudence has eroded. Second, after the Court’s most recent cases, few barriers remain to government funding used for religious purposes, as long as money is channeled through individuals. Therefore, voucher programs would almost surely be upheld. Finally, they correctly note that a plurality of the current justices would almost surely end the distinction between direct and indirect funding.

 

Ryden and Polet also present an historical overview of church-state relations and the Supreme Court’s moving position, and, in these areas, I think their presentation conveys subtly approval of the shift away from the separation principle.  First, they describe the separation principle as being developed later and eroding earlier than it actually did, which might lead readers to underestimate its historical weight. Contrary to the editors’ assertion, separation antedated the Warren Court – EVERSON was decided in 1947. Judicial support for the principle was overwhelming in the first twenty years after EVERSON. The chapter includes a comment from a 1963 concurrence by Justice Brennan suggesting that, by that date, he had already shifted away from separation. However, Brennan’s comment was, in fact, part of a larger discussion of why state- sponsored school prayer violated the Constitution. Brennan clearly subscribed to the no-aid-to-religion view of the Establishment Clause throughout his tenure.  I was also troubled in Chapter 2 by the use of terms that can have multiple meanings, such as “neutral” and “accommodation,” without defining them in context. The section also has inaccuracies – separation antedated the Warren Court, as mentioned above, and ABINGTON TOWNSHIP v. SCHEMPP was decided in 1963, not 1970 as the chapter indicates.

 

The historical account in Chapter 2 is also imbalanced, in my view, because it emphasizes the religiosity of the public, describes various religious influences on policy, and includes comments supporting the importance of religion to democracy, while giving only the slightest attention to historical factors favoring separation. For example, when considering the colonial period, the role of religious conflict as a motivation for [*878] separation is given little weight. The editors skip over the disestablishments occurring in the states during the founding period. Similarly they cite Tocqueville’s observations regarding the importance of religion in American life and to American democracy, but they do not mention his belief that the importance of religion was a by-product of separation—i.e., that religion flourishes under separation.

 

I have a much more positive view of the case studies that begin at Chapter 3, although even those expressing reservations about the constitutionality of the faith-based initiative do not fully develop the case against them. Among the eight studies, five support government faith-based partnerships, and three do not.

 

Starting from the law as it has currently been written and understood by today’s Court, Sheila Kennedy identifies three Establishment Clause problems that she believes are common to all faith-based programs operating in the areas of criminal and drug rehabilitation. First, they proselytize. Religion is seen as necessary to transform lives, without which rehabilitation would be difficult. Second, especially in prisons, there are often no secular alternatives. Third, though voluntary in theory, there are incentives to participate. Kennedy identifies other concerns as well, such as accountability.  The government cannot assure that its funds are properly and effectively used without some monitoring, but monitoring may unduly intrude on the religious autonomy of the organization, in violation of the Free Exercise Clause. Kennedy suggests that there is no way to correct most of these defects. In the end, the reader is left with programs that appear effective but unconstitutional. Possible alternatives to faith-based programs to achieve the same goals in this area are not discussed.

 

David Ryden examines a government-funded, faith-based work-to-welfare program run by Good Samaritan Ministries in southwestern Michigan. GSM, a “social services organization, supporting a network of approximately eight Christian churches of various denominational affiliations in the southwestern corner of Michigan” (p.54), served as an intermediary between the government, the churches delivering social services, and the clients. He looks particularly at Project Zero, a Michigan pilot program important in Michigan’s work-to-welfare efforts, successfully moving all of its clients into the work force. Using Project Zero as an example of programs funded by GSM, Ryden details how secular services – e.g., training in financial management, assistance in child care, finding employment, and so on – were joined to a mentoring program that included a religious message. Though participation in the mentoring program was optional, there were no secular alternatives.

 

Project Zero reflects the GSM approach more generally.  According to Ryden, the Michigan program favors Christianity and openly uses religion as a motivational force to change behavior. It thus fails the Establishment Clause’s neutrality test, and it advances religion.  He identifies two different types of problems, structural and substantive. Questions of access, equal treatment, and non-endorsement fall into the structural category and are amenable to correction. Substantive concerns, like encouraging religious conversions, are not, and they reflect a tension between the philosophy behind “charitable choice,” the notion that religion has [*879] transformative power, and the prohibition against proselytizing. There is also potential tension between the law and constitutional principle. As Ryden notes, “[t]he critical question is whether the inevitable extension of religion is constitutionally objectionable, given the success in achieving the secular purpose of reduced welfare dependency” (p.65).  This is an insightful discussion in its highlighting of the tensions within the “charitable choice” legislation, and between “charitable choice” and constitutional principle, including discussion of the direction a further reinterpretation of the Establishment Clause might take.

 

Heidi Roland Unruh and Jill Witmer Sinha, studied a welfare-to-work program run by Cookman United Methodist Church, an African-American church located in a minority community. Many of the same issues are present here, but there are some important differences as well. There is clearly a faith component and a Christian message to the program, but the church seems more open to providing services without a religious component. The issue of church-state entanglement and of discriminatory hiring is more clearly drawn than in the earlier essays.

 

Unruh and Sinha present a generally favorable picture of this program, finding many benefits to government partnering with local churches in minority communities. They contend that the churches are effective in reaching welfare recipients. The churches are trusted participants in the community, an advantage not enjoyed by government workers. Moreover, church-affiliated workers are likely to expend extra energy for low pay in the service of God. Although these authors are clearly supportive of this faith-based program, they do acknowledge a number of tensions with the state over measurements of success and disbursement of funds.  

 

Free exercise issues appear throughout the book but are the central focus of cases discussed in Part II. A brief overview by Ryden and Polet begins with the tension between the Establishment and the Free Exercise Clauses. The discussion moves next to the claim that legal concerns, presumably arising from the Establishment Clause, discourage religious organizations from seeking government funds. They conclude with a list of free exercise and free association questions, raised by government efforts to regulate religious organizations, and present a list of questions arising from concern for religious liberty.

 

This discussion makes important points and raises some key questions. For example, do publicly-funded religious entities have a free exercise right to engage in religious hiring? Would a decision requiring Catholic Charities to cover contraception for its employees cause it to withdraw from providing government-funded social services? Ryden and Polet claim it would have such an effect but do not provide specific evidence.

 

Again, I have some reservations about what is missing.  It is not enough to demonstrate that forcing Catholic Charities, or other religiously-affiliated government-funded public service programs, to offer contraceptive coverage violates their religious missions. Framing the issue fairly also requires a fuller discussion of the opposing position – that not providing contraceptive coverage discriminates against women, as the California brief [*880] argued. I think it also worth mentioning their observation that, “[p]ersons sympathetic to religion tend to see the Free Exercise Clause as controlling, while more secular thinkers tend to think the opposite” (p.85). The clear implication here is that separationists are by definition “secular,” or not “sympathetic” to religion. However, separation is often supported by religious individuals, many of whom are also strongly committed to free exercise rights.

 

The two studies that follow are done by authors who have a very different view of how free exercise conflicts should be resolved.  John Orr gives greater weight to the claims of the religious organizations; Melissa Rogers favors equal protection concerns. Both studies are worth reading, particularly for what they reveal about the conflicts and competing arguments. Rogers gives a fuller account of the competing interests.

 

John Orr analyzes the California Supreme Court’s decision in CATHOLIC CHARITIES OF SACRAMENTO v. SUPERIOR COURT OF SACRAMENTO COUNTY (2004).  The Women’s Contraceptive Equity Act required any organization providing medical insurance to offer coverage for contraception, but it allowed an exemption for “religious organizations,” defined as those engaging in sectarian hiring, sectarian distribution of services and sharing of religious message. Such organizations are what the Supreme Court has called “persuasively sectarian.”  Catholic Churches were granted exemptions; Catholic Charities, a religiously affiliated organization delivering secular services, was not granted an exemption.  Catholic Charities claimed in court that its rights were violated under both the US Constitution’s Establishment and Free Exercise Clauses and the California Constitution. One claim was that, in deciding what was religious, the state violated the Establishment Clause. Catholic Charities also argued that California had targeted them.  The California Supreme Court, however, ruled against them.  Orr is critical of the decision, and indicates that the case might ultimately be decided by the US Supreme Court.  He also points out that Catholic Charities could have prevailed had it claimed an exemption under Title VII of the Civil Rights Act.

 

Orr draws a number of lessons from this. Catholic Charities is in a bind.  If it continues to differentiate its religious and secular activities, it will compromise the religious teaching that contraception is not permissible. If it withdraws from delivering these services, it will compromise its religious teaching requiring social service to the poor. This places the case “at the center of the debate that relates to the privatization of religion and to the restriction of religious practice in a pluralistic society” (p.103).

 

Although these issues are important, Orr fully engages neither the argument over how free exercise should be defined, nor how courts or legislatures should reconcile religious practices that conflict with equality values. His discussion of a purported conflict with the Establishment Clause is not only incomplete but weakened by his characterization of Justice Stevens’ concurrence in CITY OF FLORES v. BOERNE (1997) as the majority opinion. Still, this is a valuable study. Apart from its contribution to the dialogue over church-state relations, it has great potential as a tool for teaching about the effects of precedent and the shaping of legal strategy. [*881]

 

Melissa Rogers’ essay takes a very different position. The specific legal issue, the constitutionality of religious hiring, is different but presents similar questions. She considers the issues raised by religious hiring in the context of the debate regarding whether Congress should amend the Head Start program to allow religious organizations to discriminate on the basis of religion in federally funded employment. She begins with the observation that religious hiring in federally funded organizations is a new issue both for Congress and the Court. The Title VII, 702 exemption to the nondiscrimination requirements of the Civil Rights Act and the Supreme Court’s decision in CORPORATION OF THE PRESIDING BISHOP OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS v. AMOS (1987) upholding that provision do not resolve the issue of religious hiring in federally funded programs. In what follows, Rogers broadens the discussion in three important ways. First, she offers a fuller account of potential Establishment Clause problems generated by religious hiring, starting from the proposition that, even under the Supreme Court’s much changed reading, the Establishment Clause is still understood to prohibit “the financing of religious indoctrination.” Allowing religious hiring of teachers increases the likelihood that religious content will enter the classrooms, but even if they do not, government financing gives the appearance of an unconstitutional endorsement. Second, she responds to the argument that an allowance is justified here for much the same reasons the Court in AMOS upheld a similar exemption granted religious organizations from Title VII. In that case, however, there was a burden on a religious organization to predict which of its jobs “a court might view as secular” (p.112.) Head Start does not raise such a difficulty – as a government-funded program, all of its jobs have to be secular. Finally she gives much more attention to the equality issues. Her solution is to split the difference—to continue the exemption that religious organizations enjoy from equal employment provisions of Title VII, unless the organization receives government funding.

 

The essays in Part 3 return to the examination of specific programs, and Ryden and Polet present a useful introduction to the essays that follow. This section of the book considers the question, “to what extent should constitutional analysis be enriched or informed by practice and theory” (p.125)?  It is an interesting question, but I am not sure why it is relevant only to the cases in this section. The editors’ remarks on the specific case studies are useful, as they alert the reader to the issues they consider important and that might otherwise be overlooked.

 

Frank A. Pryor III and David K. Ryden write about the experiences of some black churches in the Philadelphia area. Their piece differs somewhat from the earlier one by Unruh and Sinha.  Black churches are in many respects a special case. They are both better connected to the local community and to politics than other churches, but they are more suspicious of government, given their traditional role in challenging the prevailing power structures. Moreover, in comparison to other churches, they tend to be relatively lacking in congregational resources and, thus, more in need of government financial support. In addition, they have had specific concerns that the Bush initiative was [*882] motivated by politics, designed to gain African-American votes and to diminish the opposition of the Black community toward the Republican agenda. Many African-Americans were particularly angry over the 2000 presidential election, which they perceive to have been stolen as a result of race discrimination at the ballot box. As Pryor and Ryden show in this very interesting essay, the faith-based program created splits in Black leadership, most particularly between church and traditional civil rights leaders. Although some church leaders also expressed constitutional concerns, for many the prospect of needed government money trumped other issues. It is ironic that Republican economic policies exacerbated the situation in Black communities, that the Republican faith-based initiative provided some but not equivalent relief from this, and the relief was credited to the Republicans who then benefited politically. The study also shows that the programs were infused with faith, as one might expect in church-run programs, and there is no evidence that anyone within the community was concerned.  However, Pryor and Ryden do not show that proselytizing is necessary for effectiveness, nor do they suggest how one might assess effectiveness of the various church programs.

 

In her essay, Mary C. Segers directly speaks to some of these issues.  Segers studied New Jersey’s initiative, which, like the federal program, tapped the faith community to help deliver social services. It specifically disallowed proselytizing.  It was supported by members of the clergy and had interfaith orientation. There is no indication that it is less effective than the more faith-infused Philadelphia programs. In fact, there are very little data on effectiveness provided in any of this material.

 

The final case study, by Joyce Keyes-Williams, looks at a faith-based program run by A Tranquil Place, a mega-church in Oakland, California. While the size of the church makes it possible to be more attentive to legal requirements for beneficiary choice, overall the program looks much like those examined in earlier essays. The author does, however, place some of the conflicts and vagueness in the law in somewhat sharper relief. For example, she specifically notes the ambiguity in the word “proselytizing,” the inherent conflict between respecting the religious character of providers and beneficiaries, as well as conflicts between government funding and church autonomy. As she observes, the law “appears to be at odds with itself” (p.164). In the end, she judges the program to do good things without much harm—indicated by the absence of recipient complaints.

 

The concluding chapter, by Ryden and Polet, is part summation and part argument. I found their summary to be quite useful. The heart of this chapter is their argument for a reinterpretation of the Establishment Clause, one that would allow government to use religion to advance secular purposes, even if government action also advances religion. They openly acknowledge the faith-based initiative requires such reconsideration, an effect that has been consciously obscured by its proponents. They also defend religious hiring.

 

While I think there are a number of positive points to this section, Ryden and Polet do not present a sustained constitutional argument. Rather, they offer some insights regarding the case that might be made. So, for example, [*883] they assert that, because it is transformative, religion best serves social goals that require fundamental behavioral changes. They may be right, but this claim is based purely on anecdotal evidence, and even the evidence that could be derived from their case examples is not systematically used. I was left wondering whether the New Jersey faith initiative that barred proselytizing was less effective than those that used it.

 

Supporters of President Bush’s faith-based initiative will love this book. I have serious concerns about such programs, but overall, I liked the book as well. The case studies provide an empirical basis for looking at programs and thus add a useful dimension to discussion of the faith-based initiative. However, the apparent success of a social program that proselytizes does not prove that the proselytizing component is necessary to reach this goal. And, even if it could be shown that a faith component is necessary to the success of particular programs, it does not follow that our understanding of the Establishment Clause should be changed. There may indeed be potential benefits if the bar to aiding religion were lowered, but the potential costs should be weighed against them, and such costs are not addressed in this book. For example, many separationists are members of minority religions and fear being treated as less than full and equal members of the community.  Without such further development, I think it is unlikely that those who now oppose the faith-based initiative will change their minds.

 

CASE REFERENCES:

ABINGTON TOWNSHIP v. SCHEMPP, 374 US 203 (1963).

 

CATHOLIC CHARITIES OF SACRAMENTO v. SUPERIOR COURT OF SACRAMENTO COUNTY, 32 Cal.4th 527, 10 Cal.Rptr.3d 283 (2004).

 

CITY OF FLORES v BOERNE, 521 U.S. 507 (1997).

 

CORPORATION OF THE PRESIDING BISHOP OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS v. AMOS 483 U.S. 327 (1987).

 

EVERSON v. BOARD OF EDUCATION, 330 U.S. 1 (1947).

 

LOCKE v. DAVEY, 540 U.S. 807 (2003).

 

MITCHELL v. HELMS, 530 U.S. 793 (2000).

 

ZELMAN v. SIMMONS-HARRIS, 536 U.S. 639 (2002).

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© Copyright 2005 by the author, Caren G. Dubnoff.