Keeping faith with faith-based initiative

By Melissa Rogers
member, Advisory Council on Faith-Based and Neighborhood Partnerships

People interested in the church-state aspects of government partnerships with religious and secular nonprofits have spent a good part of the last decade or so beating each other's brains out, figuratively speaking, of course. For the past year, however, some on all sides of this debate have devoted a considerable amount of time to a search for common ground. We did so under the auspices of the White House Advisory Council on Faith-Based and Neighborhood Partnerships.

Those involved in these conversations did not consider or come to agreement on every issue. Indeed, our differences on a couple of issues are described below. But we were able to unite around a call for a number of important reforms. If implemented, these proposals would make a real difference on the ground, helping us to serve people in ways that are sensible, effective, and much more respectful of religious liberty.

How did this group go about doing its work? What are some of our recommended reforms, and what kind of difference would they make, if implemented? What are the next steps in the process? This essay addresses these questions.

Identifying Issues

President Obama asked the Advisory Council to focus its attention on making recommendations in the following areas:

• Economic Recovery and Domestic Poverty
• Environment and Climate Change
• Fatherhood and Healthy Families
• Global Poverty and Development
• Inter-religious Cooperation
• Reform of the Office of Faith-Based and Neighborhood Partnerships

I urge readers to review the full Council report for recommendations on all of these issues. I will focus here on the work and recommendations regarding the Reform of the Office of Faith-Based and Neighborhood Partnerships.

The Advisory Council established task forces to develop recommendations in each issue area. The charge of the Task Force on Reform of the Office of Faith-Based and Neighborhood Partnerships was to develop recommendations that would strengthen the social service partnerships the government forms with religious and secular nonprofits, including strengthening the constitutional and legal footing of those partnerships. This task force included people with a wide variety of views on the proper relationship between church and state. Some members of the task force supported the faith-based initiative of the previous administration, others opposed it, and still others regarded it as a mixed bag.

The task force began its work by gathering existing rules, policies, and guidance on these partnerships and creating a list of issues we might address. Early on, the White House took one significant issue off the table. It directed us not to consider the issue of religion-based employment decisions that religious organizations make regarding jobs partially or fully funded by government money, an important issue where there is profound and continuing disagreement. The White House has said it is conducting its own evaluation of this issue. Members of the task force have continued to push their views on this matter, albeit outside the scope of the Council process.

After drafting our list of issues, we found we needed to narrow it, given time constraints. We selected issues we believed had an important impact on a wide range of federally funded social service programs and also represented areas where might be able to find significant common ground. After dividing up the issues among us, we took stabs at writing initial drafts of recommendations for reform. Once we came up with initial drafts, we circulated them to one another, and began a long and painstaking process of discussion and redrafting. We found it was easier to identify the issues that needed to be addressed than to agree on exactly what kind of fixes we should recommend. Ultimately, however, all of us agreed that the administration should take a number of steps to reform these partnerships.

Recommending Reforms: Consensus Issues

Let me describe a few of our consensus recommendations. (For a description of these and other recommended reforms in bullet form, click here.)

In recent years, there's been a great deal of confusion about whether providers could use government grant money to pay for counseling involving religious instruction, for example, or mix religious content into programs funded by government grants. Current rules are fuzzy on these matters, and this has resulted in a number of constitutional violations.

For this reason, the Council called on the government to amend its rules to make it clear that grant funds cannot be used to pay for explicitly religious activities, defined as any activities that have overt religious content. The government also needs to give providers lots of examples or case studies to drive home the practical import of these limits. For example, it should be clear to providers that direct government aid cannot be used to pay for activities such as worship, religious instruction, devotional exercises, proselytizing or evangelism, and the production or dissemination of sacred texts or other religious materials.

Likewise, providers need specific instructions about how to create a meaningful and practical separation between any privately funded religious activities they offer and non-religious activities funded by government grant money. If both of these kinds of activities are offered at the same site, for example, it needs to be clear to beneficiaries that the programs are separate and distinct. Participants in the government program must be dismissed when that program ends, and there must be an interval between the programs to vacate the room before the privately funded religious program begins. Providers also must emphasize that participation in any religious activities is purely voluntary.

At the same time, we recommended that the government give equal emphasis to the fact that providers may receive government funds and maintain a religious identity through things like a religious name and mission statement. No government official should insist that the St. Vincent de Paul Center change its name to the "Mr. Vincent de Paul Center." A provider can have a religious name and mission while using grants fund properly and carefully separating government-funded activities from religious ones.

Some religious providers are ready and willing to segment their funds and activities in these ways - they simply need to know that that is required and have clear instructions about how to do it. Other providers will use this information differently - they will find in it a clear signal that government grants are not for them. Both results are good ones. Government grants are not suitable for every program, even every laudable and effective program, and it is much better for all concerned to come to such a determination at the outset.

Another problem that has become apparent in recent years is that, in many cases, the government does not require notice to be given to beneficiaries of their rights to an alternate provider that offers services of equal value. Beneficiaries, therefore, may be unaware that they have the right to an alternative secular provider or one that is religiously acceptable to them. In a nation that prizes religious freedom, that is simply unacceptable. Thus, the Council recommended that the government change its rules to require that beneficiaries of all federal social service programs receive written notice of these and other rights from the time they enter a government-funded program.

Beneficiaries, providers and others also have not been served well by the fact that an executive order addressing these issues makes no mention of the government's overarching duty to monitor and enforce legal requirements relating to the use of federal social service funds, including the constitutional obligation to monitor and enforce church-state standards in ways that avoid excessive entanglement between religion and government. So the Council recommended that this executive order and associated regulations be amended to describe these obligations. The Council also urged the administration to add church-state rules to audit checklists, and to ensure that grant documents reference all rules following federal funds.

Additionally, understanding of and confidence in federally funded social service programs administered by nonprofits suffer because it has often been difficult, if not impossible, to access lists of entities receiving these funds. This tends to feed the false impression that there's a pot of federal social service money set aside for religious groups (or groups affiliated with particular faiths), and that the system is designed to provide political payoffs. Thus, the Council recommended that all governmental bodies disbursing federal social service funds post online a list of entities receiving such aid and do so in a timely manner. For some of the same reasons, we agreed that the government should instruct its own employees and all peer reviewers that they should make decisions about grants based on the merits of proposals, not on religious or political considerations. "[A]n organization should not receive favorable or unfavorable marks [in the peer review process] because it is affiliated or unaffiliated with a religious body, or related or unrelated to a specific religion," the Council said. Similarly, we recommended that an existing executive order be amended to state that the White House Office and agency centers must comply with all applicable constitutional and statutory restrictions, including the Hatch Act's limit on the use of governmental resources for partisan political activities.

We recognize, of course, that the government cannot simply "talk the talk" on these issues; it also must "walk the walk." But we believe a good way for the government to begin to make these commitments a reality is to articulate them prominently and consistently.

The Advisory Council unanimously endorsed these and other recommendations. Council members include those associated with religious and secular service providers; World Vision and Hindu American Seva Charities; the United States Catholic Conference and the Human Rights Campaign; the Union of Orthodox Jewish Congregations and the Religious Action Center of Reform Judaism, as well as others. When people with diverse perspectives like these can agree on important church-state issues, we are making real progress. Policies with broad support are more durable, and that helps free up more time and energy to help those who are struggling.

Recommending Reforms: Non-Consensus Issues

Council members disagreed about two important related issues. The first is whether the Government should allow social services subsidized by federal grant or contract funds to be provided in rooms that contain religious art, scripture, messages, or symbols. A majority of the Council (16 members) believe the administration should neither require nor encourage the removal of religious symbols where services subsidized by direct government aid are provided, but instead should encourage providers to be sensitive and accommodating regarding beneficiaries who object to the presence of religious symbols. If these voluntary measures are insufficient to overcome objections, these Council members also affirm that beneficiaries must have access to an alternative provider to which they do not object.

On the other hand, seven Council members believe federally funded programming should be offered in areas with religious items only when there is no available space in providers' offices without these items and when removing or covering them would be infeasible. Two Council members believe the Administration should permit nongovernmental organizations to offer federally funded programming only in areas that contain no religious art, scripture, messages, or symbols.

The second issue Council members disagreed about is whether the government should require houses of worship that would receive direct federal social service funds to form separate corporations to receive those funds. The Council was almost evenly divided on this issue. A narrow majority (13 Council members) believe the government should require houses of worship that wish to receive direct federal social service funds to establish separate corporations "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."
Twelve Council members disagree. In their view, separate incorporation is sometimes the best way to achieve these goals, but it should not be imposed across the board. The government should not require separate incorporation, they said, "because it may be prohibitively costly and burdensome, particularly for smaller organizations, resulting in the disruption and deterrence of effective and constitutionally permissible relationships."

Try as we might (and we did), we simply could not come to agreement on these matters, although we did manage to discuss them in a civil and thoughtful way. We hope our discussion of these issues provides a helpful resource to the administration as it makes decisions in this area.

Next Steps

On Tuesday, March 9, the Council will present these and other recommendations to President Obama and his administration. As its name makes clear, the Council advises. The administration decides.

Again, the reforms recommended by the Council do not speak to every significant issue in this area. In my own view, the administration needs to address the employment issue soon, and there are other significant areas where reforms are needed.

If implemented, however, these reforms would help us do a much better job of inviting and involving religious and secular groups in this work, while respecting the faiths and beliefs of all Americans and maintaining governmental neutrality on religion. They also would help us spend less time in court and more time serving people in need. For all of these reasons, I urge the administration to implement these recommendations, and to do so swiftly.

Melissa Rogers is a member of the Advisory Council and the task force on Reform of the Office of Faith-Based and Neighborhood Partnerships as well as the director of the Center for Religion and Public Affairs at Wake Forest University Divinity School.

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Some Consensus Recommendations of the Advisory Council

The following list is a summary of some of the recommended reforms the Advisory Council adopted unanimously. If you are interested in reading more about these issues, consult the chapter of the Advisory Council's report on Reform of the Office of Faith-Based and Neighborhood Partnerships and look for the recommendation identified in the parentheses following each bullet.

• Specifically and prominently state, in an executive order and elsewhere, that compliance with constitutional principles is as important as ensuring that social service partnerships are effective and efficient. Make this message an essential part of all communications of the White House Office and agency Centers. (Recommendation 4)

• Make clear that all agency funding decisions must be "free of political interference or even the appearance thereof" and that White House and agency activities must abide by applicable constitutional and statutory restrictions, including the Hatch Act's prohibitions on the use of government resources for partisan political activities. Instruct participants in the grant-making process to refrain from taking religious affiliations or lack thereof into account in this process. In other words, "an organization should not receive favorable or unfavorable marks merely because it is affiliated or unaffiliated with a religious body, or related or unrelated to a specific religion." Ensure that all participants in grantmaking decisions are specifically instructed in these principles and required to abide by them. (Recommendation 4)

• Emphasize nonfinancial partnerships with nonprofits (those in which no money passes from the government to the nonprofit) as much as financial partnerships. Nonfinancial partnerships present far fewer constitutional issues, are often preferred by civil society organizations, and are as valuable to government as financial partnerships. (Recommendation 4)

• Promote a more accurate understanding of what the White House Office and agency centers do and do not do. It should be regularly emphasized, for example, that while these offices often notify community groups, both religious and secular, about opportunities to partner with government, they do not and should not play any role in decision-making about which organizations receive federal social service funds. (Recommendation 4)

• Clarify which uses of governmental grant and contract funds are appropriate and which ones are inappropriate. A current executive order and regulations say that direct aid may not be subsidize "inherently religious activities," a phrase that is confusing, undefined, and does not closely match constitutional standards. The phrase "inherently religious activities" should be replaced with the term "explicitly religious activities," with the latter term defined to mean "any activities that involve overt religious content." The government also needs to provide numerous examples or brief case studies to explain the practical meaning of this limit. It should be clear that direct government aid cannot be used, for example, to pay for activities such as "religious instruction, devotional exercises, worship, proselytizing or evangelism; production or dissemination of devotional guides or other religious materials or counseling in which counselors introduce religious content." (Recommendation 5)

• Provide more guidance on what kind of separation is required when an organization offers both non-religious activities funded by a government grant and religious activities funded by private money. These programs must be separate and distinct. If an organization offers both such programs at the same site, for example, participants in the government program must be dismissed and there must be time between the programs to vacate the room before the privately funded religious program begins. (Recommendation 6)

• In addition to giving better guidance on the separation that is required between non-religious activities funded by government grants and religious activities subsidized with private money, the government should give equal emphasis to the fact that organizations may maintain a religious identity and receive government social service funds. They may have a religious name, for example, and a mission statement or other organizational documents that contain religious references. (Recommendation 6)

• The Administration should clearly label programs as involving direct aid (e.g., government grants or contracts) and indirect aid (e.g., social service vouchers or certificates) because current constitutional interpretation establishes different church-state rules for these two types of aid. Council members could not agree on what the law should be in this area, but they did agree that it would be beneficial if the administration stated its understanding of current law is on these issues. (Recommendation 7)

• Require governmental bodies that disburse federal social service funds to post online all guidance documents for nongovernmental organizations that provide those services as well as other documents needed to receive and maintain federal funding (including requests for proposals, grants, and contracts.) Also require those bodies to post online a list of entities that receive such aid and do so in a timely manner. (Recommendation 8)

• In an executive order and elsewhere, describe the government's obligation to monitor and enforce legal requirements relating to the use of federal social service funds, including the constitutional obligation to monitor and enforce church-state standards in ways that avoid excessive entanglement between religion and government. Ensure that the church-state standards are included in monitoring tools the government uses to audit nongovernmental organizations receiving federal social service funds. (Recommendation 9)

• Ensure that each governmental body that disburses federal funds has a mechanism in place to allow that body to take necessary enforcement actions for noncompliance with church-state standards as well as other relevant legal standards. (Recommendation 9)

• Develop specific guidance for nongovernmental intermediaries to instruct them in their obligations regarding monitoring of subgrantees and subcontractors. Subgrantees and subcontractors are subject to the same church-state standards that apply to the nongovernmental organizations receiving the primary government grants or contracts (e.g., requirement to separate privately funded explicitly religious activities from government-funded non-religious ones). (Recommendation 9)

• Ensure that organizations that are awarded federal social service funds undergo training about the church-state standards that follow these funds. (Recommendation 9)

• Amend an executive order and regulations to make it clear that a beneficiary has a right to request an alternative service provider when he or she objects to the religious character of the initial service provider. Such an objection should be addressed by referral either to an alternative provider that is religiously acceptable to the beneficiary or to an alternative provider that is secular. This referral should be made within a reasonable time after this kind of objection is raised, and the alternative provider must be "reasonably accessible and have the capacity to provide comparable service to the individual." (Recommendation 10)

• Require that program beneficiaries receive written notice of their right to receive services from an alternative provider at the time beneficiaries enter government-funded programs. (Recommendation 10)

• Clarify the fact that beneficiaries' right to refuse to "actively participate" in a religious practice includes the right to refuse even to attend such a practice. (Recommendation 10)

• Reduce some of the administrative burdens and other costs associated with obtaining formal recognition of 501(c)(3) tax-exempt status because this would facilitate the voluntary pursuit of that formal recognition and the creation of separate 501(c)(3) entities. This might be done by waiving existing filing fees, expediting processing, and taking other steps to help smaller organizations form separate 501(c)(3) organizations. (Recommendation 11)

• Develop a list of best practices for keeping direct aid separate from explicitly religious activities and accounting procedures and tracking mechanisms that help facilitate and demonstrate the constitutional use of government funds. Promote those means to religious social service providers that may receive such aid. (Recommendation 12)

By Melissa Rogers |  March 9, 2010; 9:26 AM ET Save & Share:                 
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