- The Washington Times - Monday, February 5, 2001

A spokesman for Americans United for Separation of Church and State told the New York Times last week that a lot of people regard this as one of the biggest violations of church-state separation seen in American history.

By this, the spokesman meant President Bush's proposal to address the nation's social problems through faith-based institutions. More specifically, this refers to charitable choice, a concept Congress has provided for in three separate laws: the Welfare Reform Act of 1996, the Community Services Block Grant Act of 1998 and the Substance Abuse and Mental Health Services Act of 2000.

Mr. Bush proposes to extend charitable choice to the rest of the government's social service programs. To do that, of course, more legislation will be needed. But already there are a lot of people especially at Americans United and other rigidly separationist outposts warning that this is unconstitutional.

It's not or at least it's not in its current and proposed forms.

Former Sen. John Ashcroft, Missouri Republican, initiated charitable choice during the debate over welfare reform five years ago. He did so in response to reports that faith-based providers of social services were being denied grants on account of their religious character. The urgency for Congress was to impose on government a duty not to discriminate on the basis of religion among otherwise qualified providers.

Congress did that in the welfare reform bill, and then in the two subsequent social service bills. This duty is fully consistent with even mandated by the First Amendment, and it is one Mr. Bush now would have establish wherever the government has social service funds to grant.

In its legislative incarnations so far, and in the expansion Mr. Bush proposes, charitable choice directs attention to the nature of the services and the means by which they are provided. The point is to achieve a public purpose helping the poor and needy in the most effective and efficient ways possible. Government thus is not to ask "Who are you?" but "What can you do, and how will you do it?"

It may be that certain faith-based providers in a given city or state win a disproportionate number of grants in a given year. That outcome would not be unconstitutional unless as charitable choice supporters readily agree government indeed had asked "Who are you?" and favored a group on account of its religion. So long as a faith-based group wins grants on the merits and delivers the goods, it satisfies the public interest.

What would be unconstitutional is charitable choice that funded a group's explicitly religious activities say, a weekly Bible study for those in a job training program. Not surprisingly, current charitable choice law expressly prohibits diversion of the aid a group receives to sectarian worship, instruction or proselytizing. Mr. Bush proposes to follow that precedent and others including guarantees in current law for faith-based providers and for program beneficiaries.

Specifically, each faith-based group receiving a grant is guaranteed its independence from government and thus its ability to control, as one law puts it, the definition, development, practice and expression of its religious beliefs. Suffice to say, government meddling an order, say, to take down religious pictures or symbols would violate the free-exercise clause. As for the beneficiaries, they are guaranteed their choice this being the choice in charitable choice of provider, whether faith-based or not. And a provider may not discriminate against a beneficiary on account of religion or a refusal to take part in a religious service.

Lawyers distinguish between law as written and as applied, and in practice there may be constitutional problems. Maybe someone will get a grant and buy Bibles instead of meals, says Philanthropy Roundtable's John Walters. But, as he points out, that kind of problem can be easily enough corrected.

For now, the constitutional worry expressed by the strict separationists is wildly off the mark. The real issue isn't the Constitution but reviving citizenship and community. Charitable choice is a means to that end. It is an experiment, and adjustments are inevitable both for the formerly reluctant bureaucracies making the grants and the groups not used to dealing with government.

While it is too early to say how well charitable choice works, enough is known to glimpse its promise to change lives for the better, something not quickly said about other means of delivering social services. It's not surprising that both Mr. Bush and Al Gore touted charitable choice during the presidential campaign. The time has come, the separationists notwithstanding, to see what this kind of choice can do.

Terry Eastland is a contributor to The Washington Times.

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