With an increase in religious pluralism in the United States
over the past half century, the meanings of freedom of conscience
and the free exercise of religion have become the focus of
increasing controversy. As Nancy Rosenblum observes,
“[T]he proliferation of faiths … increases the
number and kind of government actions that can be said to impose a
burden on religion.” Whereas claims on religious exemptions from
general laws were formerly made typically by marginalized groups, such
as the Old Order Amish or Orthodox Jews, now all groups make these
claims. “Religious associations want not only exemption from
certain obligations but also a share of public benefits, and courts and
legislatures are forced to articulate the grounds on which they extend
or deny public funding for the activities of religious groups in
specific areas.” Finally, advocates of public support for
religion suggest that government may be obliged to ensure “the
conditions of religious flourishing,” or, at the very least,
“refrain from policies that have the effect of weakening religion
and threatening the viability of faith-based groups.”1
However, although the emphasis on religious
pluralism augments the freedom of religious organizations, it does so
only at the price of diminishing the freedom of conscience both of some
members and of those outside these organizations.
In language that provided the basis for what became the First
Amendment, James Madison stipulated in 1789 that “The civil
rights of none shall be abridged on account of religious belief or
worship; nor shall any national religion be established, nor shall the
full and equal rights of conscience be in any manner, or on any
pretext, infringed.”2
Today the phrase “full and equal
rights” is more and more often interpreted to mean not simply the
individual free exercise of religious beliefs, but also the unfettered
right of religiously based corporate bodies to engage in religious
practices—sometimes with government assistance—that may
adversely affect others. Religious organizations and their advocates
contend that because individual conscience is molded and expressed in
communities and associations, freedom of conscience also dictates
freedom for religious organizations to engage other groups in the
public square if First Amendment guarantees are to be fully realized.
According to Steven Monsma, “Individual religious conscience
makes little sense outside the context of the religious group. It is
within that context that individuals' religious consciences are
shaped, affirmed, and expressed.”
3 Protection of corporate
political advocacy is thus characterized as leveling the playing field,
as removing obstacles to the full participation of religious citizens
and their organizations in the shaping of our common life.
This broader interpretation of the full and equal rights of
conscience, however, conflates two distinct stances. First, the
government may protect the individual's right to believe and to
worship as conscience dictates, as well as to engage in practices
flowing from these beliefs that do not adversely impact the rights of
others. Second, the government may permit the individual and her
faith community, perhaps even as a matter of public policy, to
engage in and promote policies that in essence penalize others who do
not share that community's beliefs. Groups are central to
this second contingency, as they can persuade government more
effectively than can individuals. I may, for example, believe that God
has called me to ensure that adherents of other beliefs and practices
are marginalized—even when their thoughts and actions affect none
but themselves. More importantly, I and my coreligionists may enlist
the government's aid, refuting critics by suggesting that they
wish to deny my full and equal right of conscience.
The circumstances that led to Romer v. Evans (1996) provide an extreme example of this latter
position. In this case, the Supreme Court struck down a Colorado
constitutional amendment, passed by referendum, that repealed
ordinances adopted by three political subdivisions to prevent
discrimination based on sexual orientation and that further barred any
state entity from enacting similar protections. In his majority
opinion, Justice Anthony Kennedy wrote that the rights withheld under
the amendment “are protections against exclusion from an almost
limitless number of transactions and endeavors that constitute ordinary
civic life in a free society.” The amendment imposed a broad
disability on one particular group without any rational relationship to
legitimate state interests, and “A State cannot so deem a class
of persons a stranger to its laws.”4
In the view of David A. J. Richards, such legislation embodies
“political homophobia” and is “a constitutionally
illegitimate expression of religious intolerance.” Selective
enforcement of traditional moral values against particular groups'
claims to equal protection under the law suggests an equation of their
identity with individuals of traditionally despised religions, implying
that adherents should either convert or remain silent.5
Romer is an extreme example because the Colorado
amendment represented the cooptation of the machinery of government by
supporters of traditional values, many animated by religious
commitments. But even in cases where religiously based organizations
merely influence political bodies to prevent passage of
antidiscrimination legislation, they may claim the moral high ground
because, after all, their free exercise of religion and the status of
their conscientious beliefs are at stake.
In this paper, I outline two models that validate inclusion of
religious organizations in the public realm. One is a
pluralist-accommodationist model; the other takes no authoritative
notice of religion at all in the formation of public policy. Adherents
of each model believe theirs accords with the First Amendment. Both,
however, would allow public funds to be awarded to religious nonprofit
organizations, seemingly without the balancing act so often required
under current jurisprudence. I then address President George W.
Bush's faith-based initiative, which channels public funds to
religiously based organizations under the charitable choice provisions
of the 1996 welfare reform law. After considering its strengths and
weaknesses, I briefly assess the faith-based initiative from the
standpoint of each model. Finally, I consider the desire of faith-based
organizations to maintain their religious character in social service
programs and to use religious criteria in selecting employees.
Freedom of association with like-minded others to achieve a common
purpose is a valuable freedom; however, the exercise of this freedom
often adversely affects differently minded others. In my view,
corporate freedom of conscience that results in actions injurious to
others cannot be justified simply because the actors are associated in
a religiously based group. Applying the two models, I conclude that
neither permits the sorts of accommodation that religious social
service providers desire along with public funds. Religiously based
organizations, if supported by public funds, must therefore be willing
to sacrifice some freedom of speech for the sake of compliance with
public purposes. Overall, funding mechanisms can only operate fairly
and effectively if all potential recipients are held to the same
standards.
In Pursuit of Free Exercise: Accommodation
or Noncognizance?
Every state is based on some set of determinate principles and
commitments that reflect a particular ethical stance. Accordingly,
every state takes a particular stance toward religious belief. This
fact precludes religious neutrality: a state that favors neither one
religion alone nor all religions equally favors a secular society,
where all religion is privatized, by default. As Eldon Eisenach notes,
any “authoritative public discourse that integrates personal,
social and political roles also and necessarily ranks and measures ways
of life…. thereby subordinating some ends and spheres of life to
others. All significant acts of democratic political life entail these
choices.”6
William Galston
concurs: “Properly understood, liberalism is about the protection
of legitimate diversity…. [Nevertheless,] the liberal
state cannot be understood as comprehensively neutral. Rather, it is
properly characterized as a community organized in pursuit of a
distinct ensemble of public purposes.”
7 In other words, despite the liberal state's
support for diversity, its espousal of public purposes or core
commitments acts to produce one range of preferences rather than
others.
Which purposes and commitments emerge is the stuff of
politics.
With respect to protection of the free exercise of religion, the
range established by the courts has been broad. At one extreme, the
Supreme Court ruled, in Corporation of the Presiding Bishop v. Amos
(1987), that Mormons running a nonprofit
gymnasium facility were legitimately exempt from the nondiscrimination
requirements of Title VII of the 1964 Civil Rights Act when they fired a
janitor for failing to qualify for the certificate required to attend
Mormon temples. Although the district court had concluded that the
plaintiff's duties had no relation “to any conceivable
religious belief or ritual of the Mormon Church or church
administration,” Justice Byron White argued for the Court that a
1972 amendment to Title VII exempts all activities of religious
organizations from hiring restrictions. “A law is not
unconstitutional simply because it allows churches to advance
religion, which is their very purpose. For a law to have forbidden
‘effects’ … , it must be fair to say that the
government itself has advanced religion through its own
activities and influence.”8
Corporation
of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints
v. Amos (1987), at 327, 337, emphasis
original.
That is, one way to avoid deciding whether particular
practices should be protected is to decide that almost
any
practice should be exempted that religious authorities claim is necessary
or central to their faith community.
At the other extreme, the Supreme Court ruled in Employment
Division v. Smith (1990) that
Oregon could deny unemployment benefits to members of the Native
American Church for using peyote in religious ceremonies without
demonstrating a compelling state interest, as the penalty was only the
incidental effect of a neutral and generally applicable law. The
majority held in part that consideration of a religious exemption from
the effect of such laws “would enmesh judges in an impermissible
inquiry into the centrality of particular beliefs or practices to a
faith.”9
That is, a second way to avoid deciding whether
particular practices should be protected is to decide that, to avoid a
possibly arbitrary outcome, almost
no practices will be
protected.
Smith exemplifies a sharp contrast with
Amos.
Currently two Supreme Court decisions form the bedrock jurisprudence
of church-state separation. In Everson v. Board of Education
(1947), a 5–4 majority declared that
although the establishment clause of the First Amendment prohibits aid
to one, some, or even all religions, public money may be used to bus
children to parochial schools because, like police and fire protection,
transportation does not directly support their religious mission. In
Lemon v. Kurtzman (1971), a
7–1 majority found that public supplements to teachers'
salaries in parochial schools for teaching secular subjects violates
the establishment clause. To be permissible, such aid must have a
secular purpose, its primary effect must neither advance nor inhibit
religion, and the law must not promote an excessive entanglement of
government with religion. The force of these decisions is to require a
separation of the secular from the sacred aspects of religiously based
organizations if public support is to be permissible.
The complexities of applying the Lemon criteria over three
decades have given rise to modifications in these rules—sometimes
termed “the new neutrality.” In Agostini v. Felton
(1997), the Supreme Court reversed its earlier
decision that had prohibited the delivery of special education and remedial
services by public school teachers in the classrooms of religious schools.
To determine whether a government program advances religion, we must ask
whether it results in government indoctrination, defines recipients in
terms of their religion, or creates excessive entanglements, now defined
in a fashion that obviates the need for pervasive scrutiny of publicly
funded activities in sectarian settings.10
For an illuminating discussion of this neutrality, see Weber 2003, 64–74.
In
Mitchell v.
Helms (
2000), the Court allowed placement of
publicly funded computers and other instructional equipment in religious
school classrooms. This sort of aid benefits recipients without regard to
religion and does not indoctrinate; therefore, it can be viewed as
religiously neutral. Finally, in
Zelman v. Simmons-Harris
(
2002), the Court allowed the Cleveland
school district to offer vouchers to students in failing schools that
could be redeemed either in other districts' public schools or in
private schools, both nonreligious and religious. The thrust of these
recent decisions is to support free exercise of religion in ways, it is
hoped, that neither endorse nor penalize this choice.
Protection of independent religious choice, argues Michael McConnell,
has been lost in our pursuit of the elusive goal of neutrality,
resulting in a strictly secular public sphere that denies religious
difference. He advocates instead a religiously pluralistic model that
accords the same weight to ways of life grounded in tradition and
conscience that it does to those based on rationalism and choice. In
what I call a model of pluralist accommodation, McConnell
“encourages communities of conscience to preserve the
institutions necessary to perpetuate their distinctive ways of life and
to pass these on to future generations.”11
McConnell understands the religion clauses to “guarantee a
pluralistic republic in which citizens are free to exercise their
religious differences without hindrance from the state (unless
necessary to important purposes of civil government), whether that
hindrance is for or against religion.” The proper question is not
whether a law or practice advances religion, but, rather, whether its
purpose or effect will “foster religious uniformity or otherwise
distort the process of reaching and practicing religious
convictions.” Because individual believers must judge for
themselves the dictates of conscience concerning their religious
obligations, “the government must be ‘religion-blind’
except when it accommodates religion—i.e., removes
burdens on independently adopted religious practice.” When the
government provides financial support, for example, to both religious
and secular nonprofit organizations, it is not aiding religion but
acting neutrally toward it. “Indeed, to deny equal support to a
college, hospital, or orphanage on the ground that it conveys religious
ideas is to penalize it for being religious.” Although taxpayers
may properly insist that government not favor religion as such, or one
religion over another, they cannot constitutionally insist that no
taxes support religious purposes, or even that religious organizations
adhere to rules that burden their religious practices as the price of
access to public programs.12
McConnell 1992, 168, 175, 177, 184, emphasis
original. See also 134, 169, 185–86.
McConnell's
model, then, is pluralist because it encourages a wide variety of
religious expression and practice; it is accommodationist because
accommodation, even when public funds are involved, is a tool for
promoting pluralism and discouraging uniformity.
Generally, supporters of faith-based initiatives for implementing
charitable choice act according to a model of pluralist accommodation.
Monsma, for example, suggests that even if we attempt a conscientious
distinction between secular and sacred aspects of particular programs,
all programs are grounded in presuppositions and values that are
subjectively arrived at, empirically unproven, and ultimately based on
faith. Therefore, they should be treated similarly. If a religious
nonprofit organization must downplay or abrogate religious practices to
receive public benefits when similar nonreligious organizations may
maintain their character, “public policy is interfering with its
free exercise of religion.” Nonprofit organizations should not
have to choose between giving up either public funds or religiously
based practices to qualify as not pervasively sectarian, just as
individuals should not have to choose between giving up public benefits
like unemployment compensation or religious practices like Sabbath
observance.13
Monsma
1996, 117–19, 126. The classic example of the latter
dilemma is Sherbert v. Verner (1963)
in which the Supreme Court overruled the denial of unemployment
compensation under South Carolina law to a Seventh-Day Adventist fired
for refusing to work on her Sabbath.
Monsma points out that in two crucial areas of
self-definition—hiring policy and the ability to integrate
religious beliefs and practices into their programs—religious
nonprofit organizations face a trap that threatens their autonomy.
Although the Civil Rights Act of 1964 and the laws of many states
exempt religious organizations from general prohibitions against
religious discrimination in employment, “If a school or other
nonprofit is not religious enough it might not qualify for the
religious exemption…. If it is highly religious its chances of
attaining exemption is [sic] increased, but it runs
the risk of losing all public funds since the courts have ruled
pervasively sectarian nonprofits may not receive public funds.”
This dilemma inevitably results in subtle pressures on religious
organizations to weaken or otherwise compromise their religious
commitments and character.14
Although written before the inception of the faith-based initiative,
Monsma's work is consistent with McConnell's model of
pluralist accommodation. Monsma advocates a standard of “positive
neutrality” that requires “certain positive steps that
recognize, accommodate, or support religion,” if the First
Amendment is to be truly neutral “toward those of all faiths and
those who subscribe to none.” Under this standard, public funds
would be awarded to religious organizations according to three
criteria—purpose and precedent, social propriety, and
accountability. Thus public money could “fund the programs and
activities of religiously-based nonprofits that are of a temporal,
this-world benefit to society, as long as public funds are supporting
similar or parallel programs of all religious traditions without
favoritism” as well as similar secular programs sponsored by
private organizations or government. Money would be denied to entities
“that teach hatred or intolerance or in other ways work to
destroy the social fabric fundamental to civil society,” such as
the Ku Klux Klan, neo-Nazi organizations, and for some, the Nation of
Islam. Minimal standards of accountability would ensure that the
promised this-world services are indeed being provided. In the context
of this model, that an organization hire only coreligionists is indeed
proper: “Often it is the religious character of the religiously
based nonprofit that helps enable it to play a valuable, effective
public policy role.” The benefits of positive neutrality include
increased competition in the delivery of social services, enhancement
of diversity among providers, and, most important to Monsma, “the
honoring and encouraging of a sense of public morality or virtue that
is essential to a free, peaceful society.”15
Ibid., 178, 181, 185, 193.
This last point is the key, I believe, to much current support for a
larger role for religiously based organizations in the public square,
despite stated goals of pluralism or positive neutrality. The desire to
honor public morality is characteristic of those whom Rosenblum calls
integralists, who experience alienation in living “the divided
life of believer and citizen.” Integralists comprise those who
desire either public recognition of the dominant faith or public
endorsement of religious pluralism or spirituality in general. In their
view, religious organizations deserve public support as autonomous
groups whose moral effectiveness is rooted in “their uninhibited
religious identity, precisely because they offer prayer along with job
training, drug rehabilitation, schooling, and counseling,” and
whose promise is one of “general moral regeneration
through faith.”16
Rosenblum 2002, 15, 17, 16, emphasis original. See
18–20 for other types of integralism.
A second model of “religion-blindness” is official
noncognizance of religious belief and practice. This model might also
enlarge the role of religious organizations in public life, but by
default. In the view of Vincent Phillip Muñoz, James Madison was
not a strict separationist who eschewed all public support of religion,
a nonpreferentialist who allowed support for all religions without
favoritism, or a defender of religious exemptions for those burdened by
obstacles to religious exercise. According to Madison's
“Memorial and Remonstrance,” human beings necessarily form
their own opinions about their religious duties and possess an
inalienable and natural right to act in accord with these duties that
is prior to and thus independent of the social compact. Consequently,
religion lies outside the recognition or cognizance of civil society.
“A government non-cognizant of religion, in other words, must be
blind to religion. It cannot use religion or religious preferences as a
basis for classifying citizens.” Patrick Henry's 1785 bill
in Virginia, against which the “Memorial and Remonstrance”
was directed, would have supported teachers of Christianity. Whether
granting benefits or imposing burdens, however, “any legal
exemption or exception based on religious affiliation by definition
takes religion into the state's cognizance,” thereby
recognizing religion in violation of the principle of religious
liberty. Even nonpreferentialism, or applying the principle of equality
to the treatment of all religions, “says nothing about the
authority of the state to make those classifications in the first
place.” That is, the government is still taking authoritative
notice of religion.17
For the same reason, government cannot interfere with the internal
governance of churches without rendering them religious
establishments.
For Muñoz, the principle of noncognizance as
religion-blindness is simple to apply to particular cases. In
establishment cases, where nonpreferentialism requires only that
religions receive equal treatment, noncognizance “also requires
that religious individuals and organizations stand in formal equality
with nonreligious citizens and organizations, a demand that
‘nonpreferentialism’ does not make.” The government
may not “exclude individuals or organizations from generally
available benefits” based on religious affiliation. Tax
exemptions would apply and funding could be accorded both to religious
schools and to faith-based social service organizations “as long
as funding decisions do not require cognizance of religious
affiliation.”18
In free exercise cases, government would not grant
exemptions from neutral and generally applicable laws because to do so
it would have to take cognizance of religion, in violation of the
principle of religious liberty, which is not governed by the social
compact. Under noncognizance, the state may neither support nor exclude
religion or religious individuals in their practices, regardless of
burden or benefit, simply because these practices are religious. In
short, unlike pluralist accommodation, when religious organizations do
partake of public benefits, they do so because their mission fulfills a
secular purpose or social function that accords with public policy.
Their basis in religious belief is irrelevant.
Charitable Choice
Many faith-based organizations now receive public funds, often
through separate, nonprofit arms that specifically provide social
services. Catholic Charities USA, for example, receives nearly
two-thirds of its funds from a combination of federal, state, and local
governments.19
Hacker
1999. On public funding of this nature, the Supreme Court ruled
that public aid to a District of Columbia Catholic hospital was
legitimate because the hospital was separately incorporated, and
therefore a secular corporation managed by persons who adhered to the
doctrines of the Roman Catholic Church (Bradfield v. Roberts).
Citing
government aid in the form of tax exemptions; fire and police
protection; government-financed texts, computers, and remedial
education; and public aid to citizens who may direct these funds to
programs of their choice, David Cole states, “The Constitution
does not require strict separation of church and state, because in a
modern society in which virtually everyone benefits from some form of
government support, that would amount to discrimination against
religion.”
20 Cole 2001, A25. The details of New Jersey's
faith-based community development initiative, launched by Governor
Christine Todd Whitman in 1998, are exemplary in that it uses
traditional rules for public funding of nonprofit social service
agencies like Catholic Charities or Lutheran Social Services. Any
funded program must be a separately incorporated 501(c)3 nonprofit
group, it must not proselytize, funding cannot go for bricks and
mortar, and it must follow civil rights laws in its personnel
practices. See Segers 2002; see also Formicola 2003, 46–50.
The devil is
in the details, though.
The “charitable choice” provision of the 1996 welfare
reform law encourages states to “contract with nongovernmental
and religious organizations to provide social services like job
training, high school equivalency programs, courses in English as a
second language, nutrition programs, homes for unmarried mothers, and
drug and alcohol treatment. Religious groups have a right to retain
their religious character by displaying religious symbols or using
religious criteria in selecting employees.”21
On
January 30, 2001, President Bush issued executive orders creating a
White House Office of Faith-Based and Community Initiatives and
established offices in five cabinet departments to ensure their greater
cooperation with both religious and secular nonprofit organizations.
“My administration will look first to faith-based and community
groups, which have proven their power to save and change lives….
As long as there are secular alternatives, faith-based charities should
be able to compete for funding on an equal basis and in a manner that
does not cause them to sacrifice their mission.”
22 Though unable to get his proposals through
Congress, on December 12, 2002, Bush established offices in an additional
cabinet department and in the Agency for International Development, stating,
“If a charity is helping the needy, it should not matter if there
is a rabbi on board, or a cross or a crescent on the wall, or a
religious commitment in the charter…. The days of discriminating
against religious groups just because they are religious are coming to
an end.”
23 Current law pertaining to public funding for religious nonprofits is
governed by Bowen v. Kendrick (1988),
which clearly exemplifies the conflicting interpretations to which
Lemon is subject. Chief Justice William Rehnquist wrote
for a 5–4 majority that religious as well as secular nonprofit
organizations were eligible for federal grants under the Adolescent
Family Life Act, which funded the provision of services pertaining to
teen sexuality and pregnancy. The Court should not presume, he affirms,
that federal funds would primarily advance religion, that the
authorized projects are themselves religious, and that they become so
simply because they are implemented by religiously affiliated
organizations. This opinion accordingly minimized the need for
intrusive monitoring, in violation of the third prong of
Lemon.24
In his dissent, however, Justice Harry Blackmun
pointed out that counseling pregnant teenagers differs from running
soup kitchens and hospitals: “The risk of advancing religion at
public expense, and of creating an appearance that the government is
endorsing the medium and the message, is much greater when the
religious organization is directly engaged in pedagogy, with the
express intent of shaping belief and changing behavior, than where it
is neutrally dispensing medication, food, or shelter.”
25 Ibid., at 641. See also
650–51.
This possibility seems to necessitate enough
oversight that excessive government entanglement with religion would in
fact result.
Purpose
Let us examine some of the central issues of the faith-based
initiative, using Monsma's conditions for positive neutrality as a
frame of reference, in order to exemplify one way to theoretically
legitimate it. First, public funds may go to religious nonprofits whose
activities are “of a temporal, this-world benefit to
society,” as long as these funds are going to all religious
traditions and to secular private and public programs. Thus funds would
go only to programs with proven results, as Bush himself has indicated.
Even if public money does not support otherworldly activities, however,
clients will still be exposed to some faith traditions at the expense
of others. As one observer contended, “The government one way or
another picks its favorite provider. You can expect a lot of Baptist
programs in Texas and a few Mormon ones, and the opposite in Utah. So
what does equality mean under those circumstances?”26
Moreover, despite pronouncements that social problems cannot be
addressed successfully without a focus on clients' spiritual
lives, there is no empirical proof, notes Benjamin Soskis, that
faith-based organizations work better than secularly based ones.
Studies that seem to show promising results for the former turn out to
be flawed by small sample sizes, reliance on self-reporting, inadequate
reporting of dropout rates, the absence of secularly based
alternatives, and mistaken inferences regarding causality. Fewer
churchgoers may be criminals, for example, but whatever attracts them
to church may also repel them from crime. The first head of Bush's
program, John J. DiIulio Jr., admitted that in successful programs for
youth, “the one constant is meaningful adult involvement in the
life of a child…. We don't have data to prove that organic
exposure to religious influence … leads young people to a more
positive outcome.”27
Self-selection of clients may mean, as Jacob Hacker notes, that
“people who turn to faith-based charities are likely to be
particularly receptive to the message they deliver.”
28 Additionally, faith-based organizations are themselves
more likely to limit the clientele they serve; in that case even
rigorous assessments of success rates would not prove that religious
programs are more effective than secular ones.
29 If, overall, it is the
sense of community that is crucial, proponents of faith-based initiatives
may underestimate secular programs as well as exaggerate the achievements
of religious ones.
30
Propriety
The second condition of Monsma's positive neutrality—that
public funds should not go to religious organizations that teach hatred
or intolerance, or damage the social fabric of civil
society—would further limit the scope of public aid to
faith-based organizations, even among those with proven track records.
This provision answers questions like “What if Matt Hale's
Church of the Creator wants federal money to run a day care program for
little bigots, or Nation of Islam leader Louis Farrakhan wants to
operate an after-school program?”31
Moreover, religious organizations themselves disagree about
what constitutes intolerance.
Religious broadcaster Pat Robertson, for example, declared it
“appalling” that charitable choice might result in
contracts “for programs run by non-Western religions and newer
religious movements like the Church of Scientology and the Unification
Church.”32
Even before the
terrorist attacks of September 11, 2001, Robertson was a persistent
critic of Islam as well as Methodists, Presbyterians, and
Episcopalians, who he said reflect “the spirit of the
Antichrist.” A week after the attacks, he contended in a
television appearance that Muhammad was “a killer” and that
the idea that Islam is a peaceful religion is
“fraudulent.”
33 In 2002, however, Robertson's Operation Blessing
International received an award from the Department of Health and Human
Services as one of 21 faith-based organizations funded as intermediaries
to train other groups to write grant applications and run programs.
Predictably, Robertson's award drew criticism from the Council of
American-Islamic Relations, whose director stated, “Anyone who
exhibits such bigoted views is unworthy to receive taxpayer
dollars.”
34 The award to Operation
Blessing exemplifies the difficulty of defining which religious
organizations might promote hatred or intolerance. In Robertson's
view, Islam represents intolerance, while Muslims believe Robertson is
intolerant. Either way, government agencies are left in the awkward
position of somehow defining hatred and intolerance so they can deem
which faiths are worthy of public support.
At the other end of the political spectrum from Robertson, Beryl
Satter, a Jewish lesbian, notes in her opposition to a Pentecostal drug
rehabilitation program the ironic “possibility that homeless gay
teenagers, thrown out of their home by their parents, may find that the
most accessible lifeline is Bible study led by government-financed
ministers who may themselves support an anti-gay agenda.”35
Because the faith-based initiative allows the
integration of religious themes into publicly funded programs, the
religious stance that homosexuality is morally wrong appears to many
liberals as tantamount to teaching intolerance. Some of these concerns
undoubtedly influenced a March 2001 announcement that programs
emphasizing religious conversion would not be eligible for direct
grants, but would instead be funded indirectly through vouchers for
needy clients who could direct this money as they choose.
36 This adjustment, however, still does not address the objections of
those who, whether on strict separationist or nonpreferentialist
grounds, do not want public money even indirectly to support the
teaching of some religious tenets over others. As Rosenblum notes,
“After all, government support is ultimately inseparable from
endorsement of the value, if not the truth, of religious tenets and
practices.”37
The results of a 2001
Pew Research Poll led one observer to conclude that it is “clear
that competing claims for public funds by diverse religious institutions
will inevitably lead to the kind of fractiousness that the American
tradition of church-state separation was meant to avoid.”
38 As we have
seen, however, McConnell believes that taxpayers may not constitutionally
insist that no taxes support religious purposes. Moreover, he contends that
the argument from political divisiveness, or the notion that the Supreme
Court should invalidate any benefit to religion that proves contentious
even if otherwise constitutional, is a red herring.
39 The
courts' invalidation of benefits to religion simply because
granting them is politically divisive is not a sufficient
justification, he contends. On the other hand, in distinguishing
religion from artistic or scientific projects whose merit
government-appointed experts may assess, McConnell elsewhere writes,
“We respect the rights of dissenters not to be forced to
contribute to the dissemination of religious messages, and realize that
government power to determine the most worthy recipients of public
largesse would be a threat to the freedom of religion.”
40 At the very least, these considerations indicate that any
public funding of faith-based programs should proceed with the utmost
caution.
Accountability
Monsma's third condition for positive neutrality is minimal
standards of accountability. Paul Weber suggests that religious
affiliation provides no guarantee against fraudulent diversion of
public funds, that the record-keeping necessary to measure outcomes
will prove no more cost-effective than traditional means of providing
social services, and that we can expect resource shifting as religious
organizations move their own funds away from publicly funded social
services to the more directly religious aspects of their missions.41
While it must be admitted that shifting resources
is a legal and rational response to the prospect of public funding for
this-world aspects of one's mission, it complicates
accountability. Another complication occurs when organizations
indirectly use public funds for spiritual activities by integrating
religious themes into this-world programs.
A possible policy shift announced in January 2003 by the Department
of Housing and Urban Development underscores the difficulty with
accountability. Whereas current policy prohibits religious groups from
using federal housing and community development money for building
structures, the new rules would “allow the use of federal aid to
acquire, rehabilitate or build centers used for religious and
specifically approved nonreligious activities, so long as no HUD money
is used for the religious section.” That is, public money can
finance the portion of a building used for social services, while
private funds cover the sanctuary. HUD officials themselves noted that
a system for the allocation of funds at “mixed use sites”
would have to be formulated and then applied case by case. This would
require close monitoring to determine which parts of buildings are used
for which activities. As Massachusetts Representative Barney Frank
wondered, “Are we going to start sending in the inspector general
to charge people with committing a bar mitzvah?”42
InnerChange Freedom Initiative, a “Christian-based,
immersion-style rehabilitation program” offered by Charles
Colson's Prison Fellowship Ministries provides another
example.43
Although state money in the three states
that provide public funding goes only to secular parts of the voluntary
programs, such as vocational skills, substance abuse, and job
counseling, two federal lawsuits were filed challenging the
constitutionality of the program as run at a prison in Newton, Iowa.
Understandably, it is difficult to distinguish the secular from the
religious portions of a program described in a brochure thusly:
“All programming—all day, every day—is
Christ-centered.”
44 Overall, public funding under charitable choice has a secular
purpose, thereby complying with the first prong of Lemon. To
comply with the second prong, however, that its primary effect must
neither advance nor inhibit religion, the requisite monitoring will
impale it upon the third prong—that of excessive entanglement of
government with religion. Even if scrutinized under the so-called new
neutrality, moreover, public funding may have the effect of
indoctrinating clients.
From both McConnell's and Muñoz's standpoints, the
criticisms I have adduced of the faith-based initiative result not from
the weakness of the initiative itself, but from current jurisprudence
governing such partnerships between government and religiously based
nonprofits. According to McConnell's pluralist accommodation,
government is neutral and religion-blind when it accommodates
independently adopted religious practices, thereby avoiding the
fostering of religious uniformity. By this logic, although publicly
funded service providers possess no unlimited right to engage in
controversial religious or secular speech that is not part of
the structured content of the program itself, taxes may support
religious purposes, as we have seen, even when religious organizations
maintain practices that would be illegitimate under the law for secular
organizations.45
McConnell 1992. In his view, if religious
organizations are granted a constitutional right to equal access to
public programs, the conditions of access must not burden their
religious practices unless these conditions “are closely related
to the purposes of the program” (p. 186).
However,
McConnell allows governmental hindrances to the exercise of religious
difference when these hindrances serve important purposes of civil
government. If public funds go only to programs with proven results, or
do not go to religious organizations that teach hatred or intolerance,
these qualifications arguably serve important purposes of government.
But they risk inducing homogeneity and increasing religious uniformity,
contrary to his overall philosophy. Moreover, making these distinctions
requires discretionary judgments, whether through the law or executive
orders, that might easily approach the complexity of current law.
Finally, although McConnell states that public funds may not favor one
religion over another, his formulation clearly does so; government is
not neutral
within the category of religiously based
organizations. Neither is it religion-blind in the sense of
accommodating a full range of independently adopted religious
practices.
According to Muñoz's model of noncognizance, government
is neutral and religion-blind when it takes no authoritative notice of
religious affiliation or lack thereof in classifying citizens, whether
in imposing burdens or granting benefits. If laws happen to favor the
practices of some religious organizations while burdening others, for
the noncognizance model this poses no difficulty. The major difference
between the pluralist accommodation and noncognizance models, in my
view, is that under the former, religious organizations may be exempted
from rules that burden their religious practices as the price of access
to public programs. Under the latter, however, exemptions could not be
granted without government taking notice of the religious affiliation
of these programs as such. This contrast has particular relevance to
the desire of many religious nonprofits, endorsed by President Bush,
not only to compete with the secular nonprofits for funds, but also to
do so without sacrificing their religious missions and their autonomy
in hiring. It is to this issue that I now turn.
Freedom of Conscience: Groups, Individuals,
and Civic Values
A recurring theme among those who want to remove perceived obstacles
to the full participation of religious citizens and their organizations
in the shaping of our common life is that religious groups are
discriminated against just because they are religious. The proposed
remedy for those like McConnell, Monsma, and Bush is to treat them like
secularly based organizations. It seems, however, that they do not want
to be treated exactly like secular groups. They wish to
maintain their religious character by integrating religious beliefs and
practices into their this-world programs; they also, as a component of
maintaining this character, want to use religious criteria in selecting
their employees. Although under charitable choice secular alternatives
must exist and organizations must serve clients of all faiths who
present themselves, they need not hire staffs of any and all faiths.
Although these qualifications may appear defensible under the rubric of
freedom of association, protecting the conscientious beliefs of members
of religious associations can infringe upon the conscientious beliefs
of individuals, both within and outside organizations, who may be
vitally affected by its policies. Because, as even McConnell grants,
the state may interfere with the exercise of religious difference when
this serves important purposes of civil government, I suggest that much
of the controversy over the faith-based initiative is centered on
which purposes are important enough to warrant such
interference—that is, which possible infringements on beliefs
must be prohibited.
According to Chandran Kukathas's somewhat libertarian definition
of freedom, freedom of association is not characterized by the
individual freedom to enter associations of one's choice.
Christian organizations, for example, should be able to exclude
militant atheists, and some communities into which people are born do
not themselves prize freedom. Rather, the important trait of freedom of
association “is the freedom to accept or reject the restriction
on one's freedom.”46
Kukathas thus concludes that freedom of association is grounded on
liberty to
leave associations whose restrictions one rejects,
especially because freedom of exit implies freedom to form new
associations whose principles are more congenial. Because a liberal
society generally includes a diversity of groups, not all of which may
be inclusive, freedom to relinquish one's current allegiances and
to form new ones is certainly a mainstay of liberal freedom of
association.
It is imperative that society allow the potential for other
opportunities of association—or the slack, as it were—that
makes freedom to leave meaningful. Even classic arguments for religious
toleration, like John Locke's, recognize that civil authority must
establish a civil criterion of worldly injury to life, liberty, and
property that then determines the appropriate scope of religious
practice. That is, to avoid harm to this-world rights or interests of
citizens, the line between what is secular and what is religious must
be determined by civil government, not by the advocates of one or
another type of conscientious belief. Moreover, this line may change
along with the demands of the public interest, which is itself civilly
determined.47
When Locke argues that no religious organization
need retain individuals whose practices offend its principles, he is
defending the freedom of the like-minded to associate without threat
from those who might alter these principles through their membership,
either new or continuing. When he argues that no individuals should be
denied ordinary civil enjoyments because of their religious beliefs,
however, he is indirectly addressing the importance of maintaining a
forum that provides alternative opportunities. If the first point
addresses the free exercise of conscientious belief and practice, the
second takes up the danger that establishment of an orthodoxy can pose
to the exercise of alternatives.
McConnell himself wishes to foster pluralism by accommodating
independently adopted religious practices; those adhering to his stance
should thus appreciate the necessity of a context that provides
meaningful choice. But McConnell also fears public policy that may
discourage the exercise of religious difference—apparently
failing to notice that the policies of private organizations, secular
or religious, may exert the same effect. If enough religious
organizations or communities hold similar beliefs, the adherence to
which precludes the very existence of alternatives, then the context of
choice—the crucial slack—cannot exist. Even the civil
enjoyments of those whose conscientious beliefs do not allow them to
adhere to the tenets of particular faith-based organizations may be
jeopardized. And an already problematic situation is exacerbated when
these organizations receive public funds.
The need for alternatives
President Bush has suggested that faith-based organizations should be
able to compete for funds on an equal basis with secularly based
organizations, as long as there are secular alternatives. In
some situations, individuals in need of help must, for want of
transportation or information, turn to the closest source, which may
turn out to be religious in character. What alternatives do these
individuals really have? To ensure alternatives, some public entity
would have to provide a central clearinghouse, where potential clients
could learn about all publicly funded programs within their area, and
transportation would have to be provided.
It may be argued that under current policies, religiously oriented
clients may have no choice but to use a secular program. The
obligation to provide alternatives, however, does not require public
provision of the widest possible range of alternatives. Even
with public funding, social services of every conceivable faith
tradition will never exist in every locale, and some religious clients
might prefer a secular program to a religious program with which they
vehemently disagree. Commenting on McConnell's advocacy of
educational pluralism, Rosenblum notes that in addition to money,
leadership, organizational skill, and motivation, “Pluralism also
depends on whether educational entrepreneurs reflect or create the
market for alternative educational forums and goals.”48
The point also applies to social service programs:
accommodation of independently adopted religious practices does not
require public provision of compatible forums for every practice.
Even the provision of public funds for separately incorporated
hospitals associated with particular faith traditions imposes costs on
others. In recent years, a number of secular hospitals have merged with
Roman Catholic institutions. This has meant that Roman Catholic
doctrine regarding reproductive health care has been extended to
hospitals that formerly provided contraceptives, sterilizations,
abortions, and varied infertility services, but no longer do.49
Peoria
Journal-Star 2001b. See also Boston
1999, New York Times 2002.
In 2003, moreover, suits were in progress in both California and New York
in which Catholic Charities requested exemptions from state laws requiring
that contraceptives be included in employee prescription drug plans. A
successful outcome will impose Roman Catholic doctrine on thousands of
non-Catholic women (Kravets 2003).
There may be no alternative hospitals near enough for patients to obtain
these services. Moreover, many Roman Catholics, not to mention individuals
of other faiths, disagree with the official position of the Roman Catholic
Church. Under charitable choice, a proliferation of faith-based service
providers might lead to a decrease in the number or a change in the
distribution of secularly based service providers, meaning that
individuals seeking services might be compelled by circumstance to seek
aid from faith-based providers with whom they disagree. This outcome is
made more plausible by the increase in health maintenance and preferred
provider organizations, which restrict the range within which services
are available to patients, who are thus often limited at the outset by
their employers' health plans. In other words, publicly funded
faith-based service providers may deliver this-world benefits, but
thereby circumscribe rather than to expand clients' alternatives.
Those who oppose secular providers' health care options need only
decline the objectionable services, whereas those who desire
unavailable services in a faith-based setting are stuck. Such a
scenario implicitly fosters religious uniformity.
Hiring
Many believe that faith-based organizations should be able to use
religious criteria in selecting employees to run their social service
programs, that is, to discriminate in hiring. As we have seen, Corporation of the Presiding Bishop v. Amos
exemplifies this approach. Concurring Justices William Brennan and Thurgood
Marshall worried that authorized discrimination “puts at the disposal
of religion the added advantage of economic leverage in the secular
realm,” thereby going beyond reasonable accommodation and
furthering religion in ways that violate the establishment clause. They
worry even more, however, that the case-by-case analysis required to
determine whether a particular activity is of a religious character
that merits the exemption not only involves an unacceptable
entanglement of state with religion, but also might encourage religious
organizations to narrow the scope of activities they see as religious.
“The community's process of self-definition would be shaped
in part by the prospects of litigation,” thereby “chilling
religious activity” by a kind of self-censorship. To avoid this
problem, religious nonprofits incurring close scrutiny warrant
“an exemption [that] demarcates a sphere of deference
with respect to those activities most likely to be religious …
in those instances in which discrimination is most likely to reflect a
religious community's self-definition.”50
Although the expressed concern for the chilling of religious activity
is legitimate, Brennan's “sphere of deference” is
overly broad. Too much is grounded in supposition: the activities of
religious nonprofits are “most likely” to be religious, and
employment discrimination is “most likely” to reflect the
community's self-definition. I do not believe it exaggerates, in
fact, to compare the Court's deference here to its traditional
deference to the executive branch regarding immigration policy, actual
or threatened war, and foreign policy in general.51
I believe
that Locke, who argued that no individual should be denied worldly
goods or ordinary civil enjoyments because of religious belief, would
have classified the ability to earn one's living as a vital
secular good and an individual interest that should not be thwarted by
deference to the collective interest (or right) of a religious
organization.
Moreover, just as Justice Brennan conceded that authorized
discrimination gives religious organizations economic leverage in the
secular realm, the associational autonomy of religious organizations
may alter individuals' incentives by rendering some faiths more
costly to adhere to than others. For example, in Sherbert v.
Verner (1963), the Court
implied that by requiring Seventh-Day Adventists to be available to
work on their Sabbaths as a condition of receiving unemployment
compensation, the state of South Carolina had rendered it more costly
to be Sabbath observant than not.52
Stephen Carter observes that religions properly function
as independent centers of power and bases of resistance to the
prevailing ethos. The separation of church and state originated
“to protect religion from the state, not the state from
religion” (Carter 1993, 105; see also
116–17, 142).
Private entities as well as public ones
may increase the costs of particular choices. As Rosenblum writes,
“At some point, a religious association, especially when it is
the dominant establishment and economic force in a region, may wield
practically inescapable economic power over members and nonmembers. Or
the general proliferation of religious-owned enterprises, large and
small, in every area of social and economic life, can have a
significant impact on the distribution of jobs overall.”
53 In noting with reference to
Amos the widespread
ownership of economic enterprises by the Church of Jesus Christ of
Latter-day Saints, Jeff Spinner-Halev observes that allowing
church-owned or partly church-owned businesses to discriminate in whom
they serve or hire may curtail opportunities: “Throughout much of
American history people have hidden behind their religious principles
to justify discrimination.”
54 Without the
case-by-case analysis that Brennan would eschew, we are granting a
general exemption to religious organizations that requires a compelling
state interest in order for government to mandate compliance
automatically binding on other associations. Religious organizations
want to have it both ways, enjoying the same benefits as secular
organizations but simultaneously receiving exemptions from law to which
the latter must adhere. Rosenblum has it right that associational
autonomy does not “justify allowing religious associations to
define for themselves what falls within the scope of activity that is
conceivably part of their self-definition.”
55 Consider the following examples. In 2002 a Jewish psychological
therapist sued the United Methodist Children's Home in Decatur,
Georgia, which receives approximately 40 percent of its financing from
the government, when he was refused a job because he was not a
Christian. Another therapist joined the suit when fired on the
discovery that she was a lesbian. The home objected to her
nonconformity with its religious doctrines, including its not condoning
the practice of homosexuality. Although neither federal nor Georgia law
protects against discrimination based on sexual orientation, her lawyer
contended that civil rights laws “protect against religious
discrimination that takes the form of requiring an employee to lead the
kind of life and subscribe to the kinds of beliefs that assert there is
only one true and virtuous path.” The case was settled out of
court in 2003 on terms requiring nondiscrimination in hiring at social
service agencies receiving public funding.56
If the settlement had gone otherwise, if these
therapists were based in an area where a majority of opportunities were
in faith-based settings, and if most of these settings were Christian
and/or committed to the belief that homosexuality is morally wrong,
the scope of their civil enjoyments would have been significantly
narrowed. The protection of associational autonomy, in short, may
impinge upon the liberty of conscience of individuals.
The faith-based initiative, then, reveals a potential conflict
between freedom of association and freedom of speech. Under freedom of
association, religious social service providers want to maintain the
integrity of their religious character. But the message they convey,
whether to clients without alternatives, to potential employees who
would render the social services, or to taxpayers who finance them,
affects many individuals who are not members and who cannot easily
exercise their freedom to exit these associations and form new ones.
Therefore, service providers' “speech,” as exhibited
in hiring decisions, may, in my view, properly be curtailed when they
receive public funding. Jeffrey Rosen disagrees, writing that although
religious organizations may seem to demand special treatment,
“[I]t's obvious on reflection, that without the
ability to discriminate on the basis of religion in hiring and firing
staff, religious organizations lose the right to define their
organizational mission enjoyed by secular organizations that receive
public funds.” Rosen compares this issue to the Boy Scout claim,
upheld by the Supreme Court in 2001, that if it could not reject gay
scoutmasters, its message and the integrity of its values would be
compromised, suggesting that all private associations should be exempt
from discrimination laws “whenever necessary to preserve their
distinctive character.”57
Since the Scouts have been deemed a discriminatory organization by
the Court, however, governmental entities in a number of locales have
withdrawn in-kind benefits, such as troop sponsorship by local fire
departments or city officials working with troops on city time clocks.
Even Rosen believes that religious organizations should be explicit
about why their beliefs mandate discrimination, and that they should
not be exempt from having to defend their hiring practices in court. As
Samuel Marcosson observes, in a faith-based context Rosen is arguing
that religious organizations are not situated similarly to secular
ones: “Precisely to the extent they assert their dissimilarity in
an effort to maintain a religious identity and avoid oversight and
substantive regulation, they have established their dissimilarity for
purposes of defeating their claim to have been treated discriminatorily
when they were excluded in the first place. You want to participate
equally? Bear the burdens equally.”58
Religious neutrality?
Applying our two models of religion-blindness to the hiring issue, I
believe that neither actually permits the sorts of accommodation that
religious social service providers desire along with public funds.
Although McConnell's pluralist accommodation would exempt
religious organizations from adhering to burdensome nondiscrimination
laws, these exemptions render it more costly for those of the
“wrong” faith tradition (or sexual orientation) to find
employment or to be open about their identities. The exemptions do not
coerce individuals; nevertheless, they publicly sanction the private
placement of burdens on independently adopted religious (or personal)
practices. While pluralist accommodation may be religion-blind toward
faith-based organizations, it is anything but religion-blind, at least
indirectly, when it allows these organizations to use litmus tests in
hiring individuals who provide social services that are not themselves
intrinsically religious in nature. Although it may encourage the
exercise of religious difference by communities of faith, thereby
enhancing pluralism, it may hinder this exercise by individuals,
lessening the degree of pluralism, from the perspective of the
citizen.
Muñoz's model of noncognizance takes no authoritative
notice of religion, and would thus seem ideally suited to the
faith-based initiative, as it accords religiously based social service
providers public benefits on the same terms as secular providers. This
qualification cuts both ways, however. Noncognizance, on the one hand,
will not allow government to deny public funds to religious nonprofits
when they fulfill a secular function simply because they are religious.
Noncognizance, on the other hand, will not allow government to grant
exemptions from generally applicable laws to social service providers
simply because they are religious. If there is no secularly based right
to discriminate on the basis of religion or sexual orientation, there
is similarly no religiously based right to discriminate.
Purely privately funded service providers may decide that particular
faith traditions or sexual orientations are bona fide criteria for
hiring policies, but those that accept public funding may not. Freedom
of association, when backed by public funds, limits freedom of
speech.
Consider another problem with neutrality. According to McConnell,
when public officials award or withhold funding “based on their
judgments about the relative worthiness of competing projects, there
are great dangers that the power of the fisc will be used to reward or
penalize religious activity…. When subsidies are distributed
according to objective, neutral criteria, by contrast, there is no
substantial danger that this criteria [sic] will
create incentives to make particular religious choices.”59
Opposing McConnell, Kathleen Sullivan argues that the
First Amendment requires that government yield to objections against
public support of religion as it need not yield to objections against
its subsidizing advocacy of abortion, for example. One is a
constitutional mandate, while the other “is a matter of political
grace.”
60 Both McConnell and
Sullivan, however, believe that religious neutrality is an achievable
goal. In my view, it is not. Where McConnell would achieve neutrality
through a broader support of religious difference, Sullivan would do so
by strengthening the wall of separation between church and state: no
support means no possibility of influencing religious choice. In my
view, however, all public policy is grounded on judgments about the
“relative worthiness” of the options before us. Varying
policies may influence the exercise of religious difference, but in
varying ways and among varying communities of faith. Therefore, in
determining policy we need first to determine which public purposes we
wish policy to serve—a qualification even McConnell admits may
trump the exercise of religious difference.
Debate over public funding for school choice may elucidate this
point. Stephen Macedo argues, for example, that the idea that public
institutions can be neutral among varied worldviews “is a
nonstarter…. It is important that the values taught in public
schools should be publicly defensible; it is impossible that they
should be equally attractive to the different worldviews and religious
views that people espouse in America.” We are not obligated to
fulfill citizens' particular desires, but to provide them with
“a fair measure of basic goods that can be justified from a
public point of view.” Although people may pursue nonpublic
interests on their own, “it would be inappropriate to pursue
these nonpublic values and aspirations in public institutions that
we support and share as fellow citizens.”61
To me, this means that public funding should not be used
to promote pluralism that counteracts public purposes to which we are
collectively committed. Nondiscrimination in hiring is surely one of
these. In
Rust v. Sullivan (
1991),
the Supreme Court upheld public funding for a family planning program
that was contingent on private social service providers' silence
about abortion as an option, ruling that “the government can,
without violating the Constitution, selectively fund a program to
encourage certain activities it believes to be in the public interest,
without at the same time funding an alternative program which seeks to
deal with the problem in another way.”
62 Although I disagree
vehemently with what is sometimes called “the gag rule,”
the point stands. Public authority may with democratic input determine
the scope of our public purposes and may render public funding
contingent upon recipients' conducting their programs in accord
with those purposes. And as a public purpose, nondiscrimination in
hiring is at least as publicly defensible as discouragement of
abortions.
Those who claim that encouraging pluralism, even by abrogating public
purposes, will achieve the ideal of neutrality are mistaken. Amy
Gutmann notes that although school voucher advocates like McConnell
distrust those who claim to know what educational principles are best
for democracy, their advocacy of market choice with minimal standards
is itself a claim about what principles are best for democracy. Rather
than promoting neutrality, educational pluralists are simply making a
different claim. “If the time comes when citizens of a
constitutional democracy should not as citizens say what principles we
think are best for the education that we are publicly funding, then we
will probably be ready for the end of public funding of schooling. This
would be a sad day for constitutional democracy.”63
Those who argue that public funding of faith-based organizations with
exemptions from antidiscrimination laws will promote a neutral ideal of
unfettered and independent religious choice are similarly mistaken.
Greater associational autonomy for publicly funded faith-based
organizations may promote more religious choice for some, but will
curtail it for others. In my view, freedom of association means that
the right of exit from associations with which one disagrees must be
complemented by a social field that provides alternatives. The
resulting balance will not be neutral. But it is surely a public
purpose worth pursuing.
Conclusion
Although charitable choice has thus far been implemented through
executive orders rather than legislation, these issues are very much
alive. In 2003 John DiIulio deplored the fact that religious
conservatives had called for “new laws permitting religious
organizations to proselytize with public funds and enjoy virtually
unfettered rights to discriminate against employees on the basis of
religion,” thereby arousing opposition that caused a valuable
opportunity to legislate charitable choice to be lost.64
Simultaneously, the Bush administration sent a
position paper to Capitol Hill arguing that faith-based service
providers should be allowed to discriminate on the basis of religion or
sexual orientation in hiring: “Faith-based organizations must be
protected from the kind of discrimination that would prevent us from
hiring the people who are best equipped to fulfill our mission and do
the work…. This discrimination is a violation of the civil
rights of religious groups that would effectively prevent the delivery
of services to this country's black and brown urban
poor.”
65 If we wish to promote pluralism, we should encourage varieties that
enhance the free-exercise and free-speech rights of individual
conscientious believers. I shall close with two cautionary
observations. First, Gutmann notes that in a nation with a religious
establishment like Israel, in religious matters the state speaks not
simply in the name of Judaism, but “in the name of a ‘state
establishment’ of Orthodox Judaism over and often against other
interpretations of Judaism.” Even Orthodox Jews may “take
religious exception to the idea that state officials can be entrusted
to determine what counts as the correct practice of Orthodox
Judaism.” In the United States, potential clients and employees
of faith-based service providers may lose this-world benefits if they
do not conform to the dominant interpretation of a faith—that is,
to the interpretation put forth by the government-funded service
provider. As Gutmann says, “Just as separation [of church
and state] protects nonbelievers from the pressures to conform to
a religion they reject, it also protects believers from pressures to
conform to an interpretation they reject of a religion they
accept.”66
Gutmann 2000, 157, 158, 160. On a related point in
the United States concerning the preparation of kosher food in
accordance with state law that favors a particular interpretation of
Judaism, see Purdy 2003.
Second, Martha Nussbaum writes, “To be able to search for an
understanding of the ultimate meaning of life in one's own way is
among the most important aspects of a life that is truly human.”
Because even the most communal religious traditions are dynamic and
exhibit internal diversity and conflict, “it is the person whose
freedom of conscience and freedom of religious practice we should most
fundamentally consider. Although religious functioning is usually
relational and interactive … , the capabilities involved are
important for each, and it is each person who should
not be prevented from having access to these capabilities.”67
From this perspective, we should
hesitate not only in giving legal effect to purportedly authoritative
interpretations of a tradition against its own believers, but also in
doing so when nonbelievers are likely to be affected. The resulting
pluralism on the individual level is both publicly defensible and a
public purpose worthy of adoption.
