The faith-based initiative, charitable choice, and protecting the free speech rights of faith-based organizations.

AuthorBroyles, Vernadette Ramirez

We ought not to worry about faith in our society. We ought to welcome it into our programs. We ought to welcome it in the welfare system. We ought to recognize the healing power of faith in our society. --President George W. Bush (1) I. CONTEXT A. Many FBOs Express Religious Perspectives on Social Problems B. Charitable Choice and Agency Guidelines Impose Speech Restrictions in Directly Funded Programs II. FREE SPEECH PROTECTIONS FOR FAITH-BASED PROVIDERS A. The Free Speech Clause Protects the Religious Speech of Faith-Based Providers from Viewpoint Discrimination B. The Free Speech Clause Protects Relevant Speech That May be Characterized as Proselytizing or Religious Instruction from Viewpoint Discrimination C. Government Funding of Social Services Implicates Private Free Speech Rights 1. The Speech of Publicly Subsidized Faith Based Providers is Private Speech 2. Whether the Government Specifically Intended to Create a Public Forum For Speech is Not the Issue 3. McCallum Places Too Much Reliance on Rust v. Sullivan 4. McCallum Would Convert All Social Service Contractors and Grantees Into an Arm of the Government III. ADDRESSING ESTABLISHMENT CLAUSE CONCERNS A. Viewpoint Discrimination Violates the Principle of Neutrality Toward Religion Required by the Establishment Clause B. Viewpoint Neutral Protection of FBOs' Religious Speech Would Not Constitute an Endorsement of Religion C. Prohibitions on Religious Speech Risk Excessive Entanglement D. Concern for Government Religious Indoctrination Does Not Override Free Speech Protections for FBOs E. Clarifying Further the Distinction Between Protected Religious Speech and the Prohibited Funding of Religious Activities IV. RECOMMENDATIONS A. Agency Guidelines Must Clarify Existing Charitable Choice Provisions and Amend Existing Agency Restrictions B. Charitable Choice Expansion Legislation in Congress Should be Amended C. A Separate 501(c)(3) Should Be Created To Receive Direct Public Funds D. Essential Parameters of Government Programs That Directly Fund FBOs E. Ensuring that Participation in Faith-Based Programs Is Voluntary F. Categorizing FBOs Based On Their Use of Religious Speech Should Be Avoided V. CONCLUSION As part of the "faith-based initiative," President Bush has welcomed the faith community back into the public square as equal partners alongside government, corporate, and other community groups in the war on poverty and dependency. Significantly, the President vowed to issue this "call to arms" without impairing the religious character of faith-based social programs that respond.

As this initiative moves forward, however, there is an inadequate understanding of the constitutional protections afforded faith-based organizations ("FBOs") to freely express their unique religious solutions and perspectives on social issues without being excluded from direct public funding. Current statutes and policies that discriminate against the religious viewpoints of FBOs have the effect of suppressing their unique character and risk alienating them entirely from participating in government programs. More significantly, they deny FBOs the right of freedom of speech guaranteed in the United States Constitution.

One example of the threat to FBOs' free speech rights is a section of Charitable Choice (a provision of the Welfare Reform law) that prohibits the use of federal funds for "sectarian instruction" or "proselytizing" by private social service organizations. Agency guidelines contain similar speech restrictions as a condition of funding. While the intent behind such prohibitions may be to avoid the use of public funds for exclusively religious activities, these injunctions are likely to restrict speech that conveys a religious perspective relevant to publicly funded social issues. As such, they risk violating FBOs' free speech rights by subjecting them to viewpoint discrimination against their constitutionally protected religious speech.

This article addresses the free speech protections for the religious speech of faith-based social service providers and the Establishment Clause concerns involved in direct funding of FBOs. Part I discusses how many FBOs incorporate religious viewpoints on social problems (like drug addiction) into their programs and the religious speech restrictions in Charitable Choice and in federal agency guidelines. Part II discusses the free speech protections afforded FBOs for their religious social perspectives in direct government funding. This section explains that to exclude FBOs from public benefits solely because of their religious perspectives concerning social issues would constitute discrimination based on the speaker's point of view, in violation of the First Amendment guarantee to freedom of speech. Part III addresses the Establishment Clause concerns raised by direct public funding of expressively religious social service providers. This section discusses how viewpoint discrimination would violate the principle of neutrality toward religion required by the Establishment Clause and risks excessive entanglement with religion. It, furthermore, clarifies that the concern for government religious indoctrination does not justify violating FBOs' free speech rights. Part IV provides specific policy recommendations on ways to prevent both viewpoint discrimination against FBOs and government establishment of religion as the faith-based initiative moves forward.

Fundamentally at issue in this arena is whether faith-based solutions are to be granted equal recognition and protection (as promised) in the marketplace of ideas relative to the social problems that plague our communities. In order for the faith-based initiative to remain true to its original intent, FBOs must be granted equal right to speak freely on social issues from their unique faith-based perspectives without fear of censorship, exclusion, or loss of funding.

  1. CONTEXT

    1. Many FBOs Express Religious Perspectives on Social Problems

      Many faith-based social service providers adopt a holistic approach to social disorders. These organizations operate from a worldview in which no area of a person's life can be adequately addressed in isolation from the spiritual and moral--that spiritual and moral well-being have a profound and direct effect on a person's psychological, physical, social and economic well-being. As a result, these FBOs routinely express spiritual and religious perspectives and solutions as an integral part of their social programs.

      This approach has, for generations, proved invaluable in the war on hopelessness. More recently, it also has begun to receive credible support from the scientific and academic community. For example, The National Center on Addiction and Substance Abuse at Columbia University recently examined the therapeutic role of religion and spirituality in the prevention and treatment of substance abuse and addiction. (2) Its report concluded that religion and spirituality can be important, and sometimes determinative, companions to the treatment and recovery process in substance abuse addiction. Programs that incorporate spiritually-based components demonstrate superior treatment outcomes to those lacking a spiritual base. The report specifically recommends that substance abuse specialists discuss patients' and clients' spiritual needs and desires in order to better serve them. Ultimately, the authors concluded:

      [I]f ever the sum were greater than the parts it is in combining the power of God, religion and spirituality with the power of science and professional medicine to prevent and treat substance abuse and addiction.... [A] better appreciation by the medical profession, especially psychiatrists and psychologists, of the power of God, religion and spirituality to help patients with this disease holds enormous potential for prevention and treatment of substance abuse and addiction that can help millions of Americans and their families. (3) It is, thus, understandable that faith-based practitioners view the explicitly spiritual components of their programs (such as prayer or discussion of relevant scriptural principles), used in conjunction with conventional social services, as fundamental to their ability to achieve desirable secular, social goals. Prohibitions on their ability to share religious perspectives and discuss the psycho-spiritual needs of clients as an integral part of their social programs would substantially compromise their effectiveness, as well as their faith-based character.

      In addition, many clients specifically prefer to receive social services from faith-based providers. The reason for this preference is several-fold. Many clients share the faith perspective of FBOs and perceive a therapeutic value in addressing spiritual concerns and solutions as part of their assistance. Perhaps as a result, many clients experience more favorable outcomes with faith-based programs and feel they can only be effectively helped in such a setting. Moreover, many FBOs are part of the fabric of their community and provide an accessible, trusted, and familiar environment. Therefore, allowing expressively faith-based providers to participate in government funding on equal footing with other organizations empowers clients' choices and protects against the government discriminating against beneficiaries' religious choices and perspectives.

    2. Charitable Choice and Agency Guidelines Impose Speech Restrictions in Directly Funded Programs

      Charitable Choice is a provision of the 1996 Welfare Reform Act, (4) the Community Services Block Grant, (5) and programs within the Substance Abuse and Mental Health Services Administration. (6) This provision was designed to encourage states to enlist the aid of faith-based providers in the fight against poverty and other social ills. It allows faith-based providers to compete on equal footing with other private entities for social service grants, contracts, and vouchers, while protecting providers'...

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