WASHINGTON (ABP) — In a year when President Bush's “faith-based initiative” faced considerable public-relations challenges, it also continued to raise challenging legal and institutional questions, according to a new report from an independent group.
In the past year, the White House's former No. 2 director for the program has come out with a widely publicized book highly critical of Bush's push to fund social services through religious organizations. And an independent government oversight agency has issued a report that found significant deficiencies in the way the program was administered.
Meanwhile, several lawsuits challenging the constitutionality of various aspects of the program have moved forward in federal and state courts, producing one significant victory for the program's opponents.
The report, from the Roundtable on Religion and Social Welfare Policy, highlighted the ruling, one of the most sweeping regarding the faith-based initiative.
“As a matter of substance, the year's most striking developments involve the role of FBOs [faith-based organizations] in the prison setting,” wrote church-state law experts Chip Lupu and Bob Tuttle in the report on the state of the law regarding government funding of religious groups.
“At least four major cases involving faith-based rehabilitation programs are pending in the federal courts. One of them … has already led to a sweeping opinion against the constitutionality of such a program, as well as a court order that the money spent on that program be returned to the state.”
Lupu and Tuttle, who both teach at George Washington University Law School, track and analyze legal aspects of the faith-based program for the Roundtable. They presented the report to journalists, government officials and others involved in the faith-based initiative during the group's annual conference Dec. 5 in Washington.
Lupu pointed specifically to a June ruling by a federal judge in Iowa against a Christian prisoner-rehabilitation program. The judge in Americans United v. Prison Fellowship Ministries said the government-funded program at Iowa's Newton Correctional Facility violated the First Amendment's ban on government establishment of religion.
The judge found that participants were coerced with living-arrangement advantages unavailable to those who did not participate in the program, that the program and the prison had no sufficient way to monitor whether government funds given to it were spent on secular or sectarian purposes, and that the program was focused on Bible study and conversion to an evangelical form of Christianity.
“I must say that that case … is a poster child for how not to set up and run a faith-based prison program,” Lupu said. “The state violated virtually every relevant constitutional norm.”
Under the Constitution, religious groups may not use direct government grants to pay for proselytizing, worship services or other clearly religious activities.
The scholars also reiterated concerns they have raised repeatedly since 2002, when they began to monitor the faith-based program. Lupu and Tuttle have argued that the government agencies doling out grants to religious organizations are not providing sufficiently clear guidance on what sorts of activities the money may support.
Tuttle noted a report, issued in July by the independent Government Accountability Office, that identified significant weaknesses in the kind of guidance several federal agencies provide to religious grantees.
The GAO report also found deficiencies in federal agencies' oversight of religious groups that had already received funds to ensure that they did not violate constitutional standards.
Such problems, Tuttle noted, could lead to situations such as a recent case in which the Department of Health and Human Services terminated a grant to an abstinence-based sex-education program. The program, called the Silver Ring Thing, inspired a lawsuit against HHS because the group did not adequately segregate the government funds it received from private moneys it said it used to pay for religious activities, such as school rallies where children were encouraged to follow Christ.
In a settlement that HHS negotiated to end the lawsuit, the agency came up with a set of safeguards to ensure that the program would not use government funding in unconstitutional ways should it apply for, and receive, future grants.
“This document provides the clearest and most specific guidance that the administration has yet offered concerning the constitutional limits on direct aid to faith-based organizations,” Tuttle and Lupu wrote.
Lupu and Tuttle noted that the Silver Ring Thing agreement reflects the first time that a Bush administration guidance document for faith-based government grantees has included language parallel with current case law on government funding of religious groups.
Another featured speaker at the conference was Jay Hein, who recently became the head of the White House Office of Faith-Based and Community Initiatives. The office has come under criticism in recent months because of a blockbuster book by its former No. 2 official, David Kuo.
Kuo's book, released in October, accused senior White House officials of cynically using the faith-based initiative to make it appear as if the administration supported providing more money to religious charities. However, Kuo asserted, they did not invest significant political capital in pushing the legislative changes necessary to expand the initiative — or pushing for a larger pot of funding that religious groups could access to provide social services.
“The main problem with this argument, of course, is that all evidence points to the contrary,” Hein said of Kuo's book. “Criticism about whether we're authentic and whether we did what we're promising to do I think picks the entirely wrong argument.”
Hein asserted, “The federal government has been fundamentally changed as a result of this initiative.” He noted the numerous changes Bush enacted, via executive order, in agency rules that had prevented religious groups from applying for funds.
He also argued that, despite the multiple lawsuits over the initiative making their way through the courts, the Bush administration has paid close attention to the constitutional limits on government funding for religious groups.
The White House takes the First Amendment's establishment clause — which bans government support for religion — seriously, Hein said. “At the same time that we're being protected from that type of religious oppression … we're also protected to exercise our religion in a full and dynamic way,” he said. “And how that balance is achieved is uniquely American … and a great responsibility for our office.”
But Tuttle challenged Hein, saying the administration could still be clearer in the guidance it provides to most faith-based charities on how not to violate the Constitution when using federal funds.
“We have read everything that has been produced by the administration on the question of direct aid for religion, and it is not adequate,” Tuttle said. “That's the big question. That's where all the lawsuits are. And with very few exceptions, that 's the question that has been avoided.”
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Read more:
Roundtable on Religion & Social Welfare Policy report
Former Bush official claims faith push politically motivated (10/16)