Tuesday, February 6, 2001

Democratic opponents of President Bush’s new faith-based initiatives claimed they will lead to widespread race and gender discrimination in federally funded programs.The argument has little merit legally but potential big political payoffs for Democrats who oppose Charitable Choice’s constitutional cousin: school vouchers.

Ironically, a recently completed study found that Democratic voters nationally support Charitable Choice more enthusiastically than Republicans by a 61 percent to 46 percent margin. Black Democrats are even more supportive, with 87 percent favoring charitable choice.

The president’s new initiative has its roots in section 104 of the Welfare Reform bill of 1996 that allows states to contract with religious organizations or to allow religious organizations to accept money under titles I, II, and IV of the Social Security Act.

Faith-based organizations (FBOs) can compete on the same basis as any other non-government provider, without impairing the religious character of such organizations, and without diminishing the religious freedom of beneficiaries of assistance funded under such programs. During the last Congress, there were a number of bipartisan bills utilizing the Charitable Choice idea, ranging from programs to revitalize inner cities to drug rehabilitation.

Under Charitable Choice, faith-based employers are granted exemptions from laws prohibiting discriminating in their employment practices on the basis of religion. This provision is not unique to charitable choice but is borrowed whole from Title VII of the Civil Rights Act and has effectively functioned to keep courts from forcing Catholics to ordain women or Jews to hire Palestinian rabbis.

Foes of charitable choice claim that this exemption, which allows FBOs to carry on their religious function free from state control, will be expanded.

The facts, however, fall short of supporting those fears.

The religious exemption has not been a shield for invidious discrimination, as alleged. To the contrary, there are numerous cases where courts have found that an FBO’s claim that employment decisions were central to their religious function was merely a sham and could not qualify for the Title VII exemption.

There are no cases where the ministerial exemption has been used successfully to defend discrimination in Charitable Choice programs. The framers of the religious exemption to the Civil Rights Act were not about to allow racial and sex discrimination in through the back door after they had labored so vigorously for the sweeping social reform embodied in that 1964 legislation.

In fact, the legal record indicates that the religious exemption has worked well to protect the religious function of FBOs from government control without compromising the purpose of the Civil Rights Act. Religiously affiliated institutions, like Protestant colleges and Catholic hospitals, receiving federal welfare funds have long utilized the Title VII religion exemption, with no wave of government-funded discrimination sweeping the land.

The real purpose of the arguments against Mr. Bush’s plan is not to win legal battles but to raise the specter of race and sex discrimination in the public mind.

Clearly last year’s Supreme Court decision of Mitchell vs. Helms was a blow to opponents of Charitable Choice and school vouchers. By a 6-3 ruling, the court approved a school aid program in Jefferson Parish, La., which provides educational materials to private schools, the vast majority of which are Catholic. Justice Thomas, in his plurality opinion, made it plain that incidental aid to the religious function of an institution was not a bar to state aid, nor was its religious character.

Given Mitchell, foes of vouchers need a new strategy, and, given their persistent reliance on outmoded jurisprudence of the 1970s, they cannot seem to find one the Supreme Court will agree with.

Politically, casting vouchers and charitable choice in this way might prove brilliant for their foes. It also might backfire on Democrats who, as many have observed, were trying to “take back God” in the November elections with Sen. Joseph Lieberman’s faith-friendly stance and the big tent language of the Democratic platform’s abortion plank.

But attempting to pull down the “wall” between church and state with one hand and build it up with the other might not work.

John Farina is senior fellow at the Faith and Reason Institute.

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