Backdown on Charitable Choice

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First Amendment Advocate, Vol. 3, No. 1, February 2002

The Newsletter of the Oklahoma Chapter of Americans United


Bush Backing Down on 'Charitable Choice'


By Dr. Bruce Prescott


A year after President Bush made his new “Faith Based Initiatives” the centerpiece of his thrust toward a more “compassionate conservatism,” the President has embraced compromise legislation that eliminates divisive and unconstitutional “charitable choice” provisions.


The most controversial provision of the “Community Solutions Act” that was passed by House of Representatives last year was the proposed expansion of government links to faith-based social service providers by allowing tax dollars to be used to fund pervasively religious ministries.


The Senate compromise bill brokered by Sen. Joseph Lieberman, D-Conn., and Rick Santorum, R-Pa., eliminates this “charitable choice” provision and replaces it with tax incentives to encourage charitable gifts.


According to K. Hollyn Hollman, general counsel for the Baptist Joint Committee, “The Senate compromise is a U-turn from the previous faith-based legislation.  Appealing to the generosity of the American People through tax incentives is the right way to do right.  This new approach recognizes that ‘faith based’ initiatives need not divide us by trying to fund evangelism, religious worship, or discrimination.”


Other signs that the President is backing off his earlier, more ambitious plans for “charitable choice,” can be seen in the diminished status of the new director of the White House Office of Faith-Based Initiatives.   Jim Towey, who once served as legal counsel to Mother Teresa and was just named to replace John Dilulio, will be part of the White House national service office and report to Bush aide John Bridgeland.   A year ago, when Dilulio was appointed to the position, Bush said Dilulio would report directly to him.


Commenting on Towey’s appointment, Barry Lynn, executive director of Americans United, said “A year ago, this initiative was the signature domestic policy of the Bush administration.  After 12 months of criticism from the right, left and center, it’s been downgraded to part of an office on volunteerism.  With all of these problems, it looks like Towey will have his work cut out for him.”


While the President’s compromise legislation is a big step in the right direction, first amendment advocates continue to have serious reservations about some parts of the bill.  K. Hollyn Hollman expressed concerns about provisions within the new legislation regarding religious icons, charters and boards of directors.  She said the bill would enjoy stronger backing if those provisions were eliminated and  warned, “This part of the bill should not be read to change the rules of eligibility for religious providers of social services.  There is a danger that it will be misconstrued, which will invite litigation.  We urge the administration not to interpret the bill to pursue ‘charitable choice’ through the back door.”


Barry Lynn  expressed stronger reservations about the legislation.  He said, “While the new proposal wisely avoids many of the divisive legal problems of the president’s original plan, it still contains several problematic provisions.  The White House claims this plan will offer equal treatment for all groups, but it actually gives special treatment to religious groups.”


At issue is the so-called “Equal Treatment” section of the new legislation which Lynn says shows unfair bias toward religious social service providers. 


For example, religious groups would be able to receive public funds while displaying unlimited amounts of religious “art, icons, scripture or other symbols.”  Such displays could make many religious minorities feel like second-class citizens at institutions providing social services with tax dollars.


“It is simply wrong for a publicly funded job training facility to post a banner that reads, ’Only Jesus Saves,’” Lynn said.  “If a religious group receives public funds, they should display an American flag, not a crucifix.”


Lynn also said that government contractors in many communities are currently required to have governing boards that reflect the diversity of the community.  The new legislation exempts religious groups from these equal opportunity laws, while not affording the same exemption to secular service providers. 


“The president’s claim about wanting a ‘level playing field’ rings hollow in light of the details of this proposal,”  Lynn said.  He concluded that due to these lingering constitutional questions, “the faith-based initiative still has a giant question mark hanging over it.”


American United will continue to watch this plan closely in the coming months.


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