Compassion Inaction: Why President Bush's Faith-based Initiatives Violate the Establishment Clause

• Publication year: 2006

SEATTLE UNIVERSITY LAW REVIEWVolume 29, No. 4SUMMER 2006

Compassion Inaction: Why President Bush's Faith-Based Initiatives Violate the Establishment Clause

Martha A. Boden(fn*)

I. Introduction

Within a week of his 2001 inauguration, President George W. Bush launched an aggressive campaign to expand governmental funding for private religious groups to provide social services to the poor.(fn1) Although it is widely believed that the President's Faith-Based Initiatives died on the Senate floor, in fact, the Initiatives are a multi-billion dollar enterprise today.(fn2) Like presidents before him, President Bush circumvented Congress by invoking executive authority to override Congressional inaction; unlike his predecessors however, President Bush pushed his plan into action all the way down to the local level on a national scale.(fn3) In a series of executive orders, President Bush shifted power from the legislature to the executive branch.(fn4) Through these orders the Bush Administration has built a new layer of federal bureaucracy dedicated to enabling religious groups to compete for federal grant dollars without compromising their religious character.(fn5) The resulting agency rules have opened the floodgates for an unprecedented amount of government spending on religious social service programs.(fn6)

The newly intensified church-state partnership that has emerged raises a serious constitutional question. In crafting the amended rules, the Bush Administration has relied on an untested interpretation of First Amendment jurisprudence: the assumption that religious institutions can provide social and health services with direct governmental funding as long as the funded activities are not inherently religious(fn7) This interpretation of the Establishment Clause is not supported by Supreme Court precedent.(fn8) Moreover, its implementation through the Initiatives threatens to weaken the protective wall between church and state that most Americans believe does and should exist.(fn9)

The Administration's Faith-Based Initiatives would fail a constitutional challenge under the Establishment Clause of the First Amendment. Applying the three-pronged test developed in Lemon v. Kurtzman(fn10) and Zelman v. Simmons-Harris,,(fn11) this Comment concludes that the Initiatives, (1) though purportedly secular, have been enacted for a sectarian purpose and are not neutral toward religion; (2) are coercive and fail to fulfill the condition of private choice because the rural poor, such as those in Franklin County, Washington, whom the Initiatives target, realistically cannot choose between non-religious and sectarian service providers; and (3) to the extent that Initiative funded programs can be kept separate from sectarian influence, they constitute impermissibly excessive entanglement between government and religion. Therefore, federal taxpayers, whose tax dollars fund Faith-Based Initiative programs such as the Compassion Capital Fund for Lourdes Hospital, a Catholic run facility in eastern Washington, have a cause of action under the First Amendment and should succeed in challenging the Initiatives under the Establishment Clause test.

Additionally, this Comment identifies serious problems with the Initiative program in light of public policy interests. That this complicated and expansive funding program provides inadequate guidance to religious service providers, lacks transparency in its operations, and contains no obvious oversight provisions, not only undermines the Administration's purported purposes, but also indicates that the program is ripe for abuse.(fn12) As it crosses the limit of permissible government entanglement with religion, the Bush Administration acknowledges that it is toying with a "delicate" constitutional balance of interests.(fn13) Yet, it has not demonstrated the capacity to safeguard this balance. Today, as poor Americans become poorer(fn14) and the national debt continues to rise,(fn15) we must invoke the Constitution to prevent the Executive branch from oppressing the rural poor, America's most vulnerable demographic sector, with state-sponsored religious coercion that negatively impacts recipients' health and wellbeing. To allow such religious oppression undercuts the intent of the framers of the First Amendment.

Part II of this Comment describes one rural Washington community that is indicative of the population that the Initiatives purport to target: the poor and underserved. The policy and structure of the Initiatives are outlined in Part III, including funding streams that reach these rural Washington State residents through Catholic run healthcare programs in Franklin County. In Part IV this Comment briefly surveys the history of Supreme Court Establishment Clause jurisprudence and identifies the test applicable to this set of facts. Part V scrutinizes these Initiative programs under the combined Lemon and Zelman test, and Part VI concludes that the Initiatives entail a government establishment of religion and, therefore violate the First Amendment to the United States Constitution.

II. The Underserved: A profile of the Rural poor in One Washington County

Our country is blessed with a long tradition of and honorable commitment to assisting individuals, families, and communities who have not fully shared in America's prosperity. But despite efforts by the federal and state governments to battle social distress, too many of our neighbors still suffer from poverty and despair. In every corner of America, people of all ages and walks of life are calling out for help.(fn16)

With this observation, the Administration has signaled its intention to assist the desperately poor and needy, many of whom live in rural areas like Franklin County, Washington. While eighty percent of Americans live in the one-quarter of United States counties that are classified as "metropolitan,"(fn17) sixty million others live in rural areas and share socio-economic characteristics that greatly impact their health and well-being. As the Administration has noted, reaching the needy "in every corner of America" presents special challenges for service providers.(fn18)

Compared to their metropolitan counterparts, rural Americans tend to be poorer.(fn19) Two potent forces, lack of access to jobs and lack of access to services, conspire in combination against the wellbeing of rural community residents.(fn20) The relationship between poverty and poor health is well-documented, and this impact is accentuated in out-lying communities where there are few doctors or hospitals within reach.(fn21) For instance, hospitals in rural communities experience lower reimbursement rates than those operating in cities and tend to narrow their service offerings or to cease operating in response to such financial squeezing.(fn22) Additionally, rural physicians are more likely to provide care outside their specialty areas, a practice that may compromise the quality of patient care, especially since rural doctors are less likely to have access to internet or library research services.(fn23)

Consequently, rural Americans enjoy markedly poorer physical and mental health than their metropolitan counterparts.(fn24) Rural Americans are more obese, more likely to smoke, and less likely to carry health insurance than Americans as a whole.(fn25) Rural children and young adults are more likely to die from disease or suicide than if they lived in or near a city.(fn26) The chance of dying in car accidents is greater for those who live in sparsely populated communities as well,(fn27) possibly as a result of greater distance from emergency services.

Recognizing this unmet need for social and health services, state legislators often direct state or federal funds to service providers willing to operate in remote areas.(fn28) In Washington, for example, rural healthcare centers receive the highest proportion of Medicare and Medicaid funding allocated statewide.(fn29) In 2002, Washington state and federal funding for rural medical care totaled an impressive one billion dollars.(fn30) Even so, twenty-four percent of residents in Franklin County, the poorest county in Washington, currently lack health insurance.(fn31) Experts agree that the number of uninsured is rising faster than resources are made available to meet expanding need.(fn32) Thus, the healthcare gap is widening in Washington.

Despite these governmental subsidy programs, Washington's Franklin County residents cope with a significant shortage of medical services.(fn33) Franklin County is served by only one hospital: Lourdes Medical Center located in Pasco.(fn34) Two private, non-profit outpatient clinics comprise the primary care option for most of Franklin County's poor.(fn35) La Clinica, the largest and only full-time clinic, handles the lion's share of charity outpatient care and reportedly writes off one quarter of its budget as uncompensated care or bad debt each year.(fn36) Lourdes, a Catholic hospital founded by the Sisters of St. Joseph, is the only option for inpatient and emergent care in Franklin County.(fn37) More expensive than La Clinica, Lourdes currently faces losing half of its licensed beds due to non-use.(fn38) In contrast, at La Clinica business is booming.(fn39) In particular, La Clinica recently has experienced an influx of new, uninsured patients who cannot afford to visit Lourdes and who have been turned away by other...