Author(s): L. Martin Nussbaum
Published: 10/10/2008
Media reports of the 2008 presidential campaign focus on the horse race, the personalities and character of the candidates, and a constellation of large issues, including Iraq and Afghanistan, terrorism, nuclear rogue states, the economy, energy development, and abortion. Because churches, synagogues, and mosques care deeply about the just ordering of society, they care especially about the candidates’ character and about these justice-laden issues.
The press has reported little about another issue of great importance to religious institutions: the candidates’ divergent positions on charitable choice. Charitable choice is a legal movement that seeks to promote cooperative efforts between government and faith-based organizations (FBOs) like food banks, soup kitchens, job training centers, drug and alcohol rehabilitation agencies, and low-cost housing providers.
The hallmarks of charitable choice laws are fourfold:
(1) A level playing field: FBOs get to compete for government contracts just as secular nonprofits do, and government entities cannot exclude FBOs from contract eligibility because they are faith-based;
(2) Client choice: FBOs cannot discriminate among clients because of the clients’ religion, and clients who object to benefits from an FBO should be given a secular alternative;
(3) FBO religious autonomy: Government entities issuing contracts or making regulations cannot dictate or edit FBOs’ beliefs or prevent them from hiring people of the same faith; and
(4) Nuanced separation: Contracts with and regulations for FBOs seek to avoid using government funds for intrinsically religious activities, including proselytizing, religious instruction, and worship.
Nowadays it seems as if all the major political figures claim to support church-state cooperation in addressing social problems. President Bill Clinton signed the first federal charitable choice statute, the Personal Responsibility and Work Opportunity Reconciliation Act, into law in 1996. President George Bush supported such laws as Governor of Texas and has continued to do so as President. Candidates John McCain and Barack Obama both claim to support such laws as well.
There is, however, a difference. On July 1, 2008, Senator Obama endorsed the idea of a level playing field by stating, "I still believe it’s a good idea to have a partnership between the White House and grassroots groups, both faith-based and secular." He then said, "if you get a federal grant, you can’t use that grant money to proselytize the people you help and you can’t discriminate against them--or against the people you hire--on the basis of their religion." This sounded good because it endorsed the principles of client choice and nuanced separation. The problem is in the six words "or against the people you hire." Prohibiting FBOs to hire like-minded people of faith is a Faustian bargain. It requires surrender of a fundamental freedom and deprives those served from receiving services from spirit-filled providers.
During the 2008 legislative session in Colorado, the Anti-Defamation League sponsored House Bill 1080 which would have had the same effect. The bill ensured that the price for FBO access to government contracts is that FBOs surrender their freedom to hire like-minded employees. Within days of its introduction, a historic coalition of FBO executives gathered at the State Capitol. They represented the Salvation Army, Catholic Charities, Colorado Christian University, the Catholic and Adventist hospitals, the Denver Rescue Mission, the Association of Christian Schools International, and others. Together, they announced that they would cease participation in government contracts that denied them the ability to hire like-minded people of faith. The bill was withdrawn.
After Senator Obama announced his rejection of FBO religious autonomy, Senator McCain endorsed charitable choice and added, "it is important for faith-based groups to be able to hire people who share their faith."
Jeffrey Rosen previously addressed this issue in his 2001 article in The New Republic: "It may seem that religious organizations are asking for special treatment when they demand the right to engage in discrimination with public money. . . . But it’s obvious, on reflection, that without the ability to discriminate on the basis of religion in hiring and firing staff, religious organizations lose the right to define their organizational mission enjoyed by secular organizations that receive public funds. [T]he charitable-choice law is careful to insist that these groups can discriminate in the hiring of staff but not in the treatment of beneficiaries. In other words, a Baptist church may refuse to hire Jews as drug counselors, but it may not refuse to serve Jews who ask for drug counseling."
A partner practicing in RJ&L’s Colorado Springs office, L. Martin Nussbaum serves as co-chair of the RJ&L Religious Institutions Group and as general counsel and advocate for numerous churches and religious organizations in a variety of legal matters, including risk management, ministerial misconduct, corporate, tax, property, tax-exempt financing, licensing, employment, First Amendment rights, and related litigation. He can be reached at 719-386-3004 or by email at mnussbaum@ rothgerber.com.