Analysis: Council’s report partial victory for church-state separation

WASHINGTON (ABP) — After a year of work by President Obama’s Advisory Council on Faith-Based and Neighborhood Partnerships, the panel has made its recommendations. According to experts in religious liberty, some of them represent long-sought victories for supporters of strong church-state separation.

Nonetheless, neither the report’s recommendations nor the White House actions on the subject have gone far enough to please many who were critical of previous administrations’ efforts to loosen government rules on funding social services through churches and other religious organizations.

The report, released earlier this month, makes recommendations in several areas the council was tasked with reviewing. A set of the council’s recommendations about reform of the White House Office of Faith-Based and Neighborhood Partnerships and its related programs in federal agencies dealt with many of the most controversial church-state issues surrounding the faith-based effort.

On two issues in particular — strengthening the guidance that religious groups receiving government funding receive to ensure that they do not violate the First Amendment’s ban on government promotion of religion and houses of worship forming separately incorporated charities through which to carry out government-funded programs — the council’s recommendations heartened church-state separationists.

But the panel was not charged with bringing a recommendation on what may be the most controversial issue surrounding the faith-based effort — the hiring rights of religous organizations that use federal funds to deliver social services.

Recommendations go 'a long way' to rectifying church-state problems

The recommendations go “a long way in righting the church-state problems that have plagued the faith-based initiative over the past decade,” said Brent Walker of the Baptist Joint Committee for Religious Liberty, who served on a sub-panel of the council that helped craft the recommendations.

Brent Walker

“We made major strides in seeking to honor constitutional principles while ensuring the autonomy of religious organizations, including churches. The requirement of a separate corporation to receive the money and perform the services is crucial to achieving this goal.”

That recommendation was one for which groups critical of President George W. Bush’s efforts to expand faith-based partnerships had long contended. The BJC and other church-state separationist groups have argued it is the best way to ensure that government money intended for secular social services isn’t diverted to worship, devotional or other religious activities.

But it was the one recommendation over which the council’s members had the most sharply differing views.

“Council members are almost evenly divided over the issue of whether the government should also require houses of worship that would receive direct federal social-service funds to form separate corporations to receive those funds,” the report said. “A narrow majority of the council (13 members) believe the federal government should take such a step as a necessary means for achieving church-state separation and protecting religious autonomy, while also urging states to reduce any unnecessary administrative costs and burdens associated with attaining this status. A minority of the council (12 members) believe separate incorporation is sometimes, but not always, the best means to achieve these goals and should not be required because it may be prohibitively costly and would disrupt or deter other successful and constitutionally permissible relationships.”

Melissa Rogers

Melissa Rogers, a former BJC general counsel and currently a professor at Wake Forest Divinity School, chaired the council. She said that even the disagreement over the separate-incorporation requirement, while closely dividing the council, nonetheless revealed some common ground on the issue.

“I certainly believe that — for the good of both church and state — the government should take this step. So I was pleased to see the proposal draw support from a large and diverse group of council members,” Rogers said. “If you read the arguments back and forth in the report, you see that even those on the other side of this question believe separate incorporation for houses of worship is advisable in many cases, so that’s also worth noting.

Charles Haynes of the Freedom Forum’s First Amendment Center said separate incorporation is a best practice. “Religious charities would be wise to form separate 501(c)(3) organizations because that would both help ensure that tax money is not used for religious purposes and protect the autonomy of faith communities,” he said. “For those who believe that separation of church and state is good for religion, this would be a victory for the principle of separation.”

Clearer church-state guidance to grantees

The council also recommended that granting agencies provide much clearer guidance to charities receiving government funding on how to avoid spending government dollars on activities that violate the First Amendment’s prohibition on government-endorsed religion. Those recommendations drew broad support from the panel, which included Rogers and Walker as well as former Southern Baptist Convention president Frank Page and prominent African-American Baptist leaders Otis Moss, Jr., and William Shaw.

“We are at a new stage when some who supported charitable choice [the Clinton-era forerunner of the Bush faith-based effort] as well as some who opposed it can agree on a list of common-ground standards that should control many issues in this area,” Rogers said. "These aren’t personal victories. Instead, they are a demonstration of the merit of the ideas and a testament to the group’s dogged commitment to listen to one another and work together despite our differences on some important issues.”

The clearer guidance, in particular, was a valuable step for avoiding lawsuits and constitutional violations, said one legal scholar who’s been tracking the faith-based effort since its beginning.

“The general thrust is that the clarity is of the sort that will help,” said George Washington University Law School professor Chip Lupu, who along with colleague Bob Tuttle has been monitoring the legal issues surrounding government funding of religious charities for the Roundtable on Religion and Social Welfare Policy and the Pew Forum on Religion and Public Life. “Bob and I hopped for years on this Bush-era regulation about ‘inherently religious activities’ [being non-fundable with government dollars] and how ambiguous that was. And the task force here clarified that.”

To be resolved: Hiring-discrimination questions

What remains unclear is the other big controversy surrounding the faith-based initiative: Whether religious charities receiving government funding to carry out ostensibly secular social services can, nonetheless, discriminate on the basis of religion in hiring for positions dealing with those charities. Opponents of Bush’s effort — including most strong church-state separationists — believe they can’t. Bush and his supporters contended that not allowing religious charities to take faith into account when hiring would force them to change their fundamental nature in order to receive government funds.

Obama promised, during a 2008 campaign speech, to reverse a Bush policy that had allowed religious charities receiving government funds to take faith into account when hiring. But, since taking office, White House officials have taken a more cautious approach to the question. While church-state separationists have pressed Obama  to overturn the policy in one fell swoop, administration officials have instead said federal agencies would address concerns over discrimination in hiring on a case-by-case basis.

That leaves Rogers, Walker and other church-state separationists hoping for more.

“I trust the administration will implement all of our recommendations, and in the next year fulfill President Obama's campaign promise to eliminate religious discrimination in employment for governmentally funded programs,” Walker said.

–Robert Marus is managing editor and Washington bureau chief for Associated Baptist Press.

Previous ABP stories:

Faith-based panel narrowly recommends separate 501(c)(3) entities for churches (2/11/2010)

Church-state groups press Holder to withdraw Bush-era hiring memo (9/18/2009)

On church-state issues, Obama brings new perspective, slow policy change (7/8/2009)

On Bush’s faith-based programs, Obama says save best, ditch rest (7/6/2008)