Faith-Based Barricade

President Bush Keeps Trying To Steer His Religion Funding Vehicle Through Congress, But A federal Court Has Put Up A New Constitutional Roadblock

With George W. Bush enjoying record-high approval ratings, White House staffers arranged a Dec. 21 media event giving the president a chance to boast of his administration's first-year accomplishments.

But even in this setting, orchestrated to give the president a chance to highlight his successes, Bush couldn't help but mention the one proposal he wants that hasn't reached his desk for a signature.

"The faith-based initiative is such a vital initiative for making sure that there's something beyond welfare for people who have lost hope in life," Bush said. "That bill passed the House. I look forward to working with the Senate sponsors...to get it past the Senate."

The fact that the president would mention the controversial funding scheme for religious social services in a speech devoted to his first year's accomplishments emphasizes just how seriously the White House considers the proposal.

Upon taking office in 2001, President Bush laid out an agenda of legislative initiatives that he sought to accomplish during his first year in office. The "big six," as it came to be known, included high-profile goals such as massive tax cuts and a comprehensive education reform bill. Twelve months after his inauguration, Bush had successfully completed five of the six agenda items. The sixth the so-called "faith-based initiative" passed the House but stalled in the Senate, preventing the White House from enjoying a completed legislative checklist.

Ironically, the religion initiative has been the proposal Bush appeared most interested in. The policy, which could direct billions of tax dollars to religious groups, represented the signature objective of Bush's administration. When he unveiled the plan in January 2001, the president said, "It's going to be one of the most important initiatives that my administration not only discusses, but implements."

Nevertheless, a year later, the faith-based initiative is still mired in controversy and is considered deeply contentious in the Senate, which has been hesitant to even consider the measure in committee.

This winter has represented something of a turning point for Bush's beleaguered objective. While nary a speech was delivered in recent months without the president touting the plan, new political and legal obstacles have arisen that will make passing the initiative in 2002 a daunting challenge.

These hurdles, however, haven't stopped Bush from pushing the proposal. In fact, the president spent much of the winter urging lawmakers to pass his initiative, and encouraging Americans in general to support it.

During a Dec. 10 town hall meeting in Orlando, for example, Bush told an audience that government should not be afraid to embrace religious partners.

"Government must not fear these programs that exist in neighborhoods all around the country, based upon faith," Bush said. "We must not fear government embracing religion. We fear a state religion, that's not what we're for.... [G]overnment can embrace programs started because of faith and religion and encourage those programs to foster in neighborhoods all across America. I'm passionate on the subject because I understand the power of faith in people's lives, and I understand what it can mean."

Similarly, on Dec. 29 Bush used his weekly radio address to outline the legislative proposals he will be looking to the Congress to pass in 2002.

"I'm counting on the Senate to take up my proposals to assure America's energy independence, to stimulate our economy and create jobs, to adopt a solid patients' bill of rights, to mobilize faith-based institutions for a new era of effective compassion and to enhance our ability to negotiate favorable trade agreements for the United States," Bush said.

Even in speeches devoted to different topics, Bush would take a moment to emphasize his support for faith-based work. In a Jan. 5 speech urging Senate action on his economic stimulus plan, Bush told an audience in Portland, Ore., "I'm so pleased to report to you that the great fabric of the country, in terms of helping people, exists because of faith-based institutions regardless of their religion."

If one of Bush's goals was to reinforce support among congressional allies of the plan, he succeeded. Two of the initiative's most enthusiastic supporters, Sen. Rick Santorum (R-Pa.) and Rep. J.C. Watts (R-Okla.), held a press briefing Dec. 6 to express their ongoing commitment to the concept, and to indicate that the bill will be high on the congressional agenda in 2002. The lawmakers also made an effort to exploit tragedy by arguing that the extra burdens placed on religious charities in the wake of the Sept.11 terrorist attacks make the move more important now than ever.

Santorum and Watts agreed that the initiative may be considered in scaled-back form in order to address concerns of Senate Democrats, who have expressed doubts over the plan's constitutionality and provisions that allow publicly funded employment discrimination. A less-controversial version of the legislation could include proposals to encourage charitable giving through changes to tax law and making it easier for smaller organizations to apply for tax-exempt status.

Even supporters of the initiative acknowledge that they'd prefer a watered-down bill to no bill at all.

"We can't get a commitment to [the whole package], so we'll see if we can break it apart," Santorum told reporters. "There's ample opportunity to get certainly the tax relief, and even some language that may be agreeable to the House and Senate on some of the other issues."

If the Senate is going to pass a faith-based bill in any form, it will be the result of delicate negotiations. For months, Sen. Joseph Lieberman (D-Conn.) has positioned himself as an advocate of public support for religious charities and has been working behind the scenes to broker a legislative package that would garner a majority in the Senate.

Lieberman's interest has been ongoing through much of the yearlong debate over faith-based aid. Last March, the 2000 Democratic nominee for vice president joined Santorum in introducing the "Savings Opportunity and Charitable Giving Act," a bill designed to promote charitable donations through a range of new tax credits and individual development accounts.

As the process unfolded, that bill generated little enthusiasm, but Lieberman's steadfast commitment to the issue remained. Toward the end of 2001, with Bush continuing to pressure lawmakers to pass legislation by the end of the year, Lieberman and Santorum met with the president to craft a compromise. The result of their work was an "Armies of Compassion" bill, which would emphasize tax incentives to encourage charitable giving, technical assistance for non-profit organizations and an expedited process for charitable groups to qualify for tax-exempt status.

Well aware of just how controversial direct funding of religious groups is, Lieberman, Santorum and Bush steered clear of the controversial "charitable choice" provisions that raise the ire of civil liberties advocates, a significant victory for faith-based critics.

The "Armies of Compassion" legislation was never formally introduced in the Senate, but Lieberman and Santorum hoped to attach the measure to other end-of-the-year spending packages. Despite the fact that the bill offered a dramatically watered down approach to faith-based assistance, the proposal never generated enough support for passage.

The bill's chances were ruined, however, not by church-state concerns, but rather by its price tag. Tax incentives for charitable giving were estimated to cost as much as $9 billion, and with lawmakers facing budget shortfalls, the tab proved too high. The Senate adjourned in December without as much as a vote on the faith-based initiative.

Bush's plan faces an uncertain political future in Congress. To be sure, advocates on both ends of Pennsylvania Avenue remain dedicated to seeing this initiative through. Whether the faith-based scheme can be scaled back enough to make it politically palatable to its critics, however, remains to be seen.

Ultimately, the proposal will have to overcome more than just questions from the Senate majority. Since Bush unveiled the plan in January 2001, the proposal has drawn intense criticism from the religious, civil liberties, civil rights, educational and social service communities. Now it appears the Bush plan has yet another obstacle to overcome: the Constitution.

In a court ruling likely to have a significant impact on the debate, a federal judge has struck down a Wisconsin program that provided public funds to a religious group that offered drug and alcohol treatment with a heavy dose of Christianity.

The Faith Works program, which operates in a former Milwaukee convent, has benefited from nearly $1 million in aid from the state since opening its doors in 1999. Overall, about two-thirds of the program's budget comes from taxpayer dollars. In fact, the group's founders created the program with two grants totaling $600,000 from then Gov. Tommy Thompson, who now serves as Bush's Secretary of Health and Human Services.

In November 2000, the Freedom From Religion Foundation (FFRF), a Wisconsin-based freethinkers' organization, filed suit arguing the grants violated the First Amendment's separation of church and state.

In its challenge, the FFRF noted that Faith Works has made little effort to hide its religiosity, despite receiving public support. The ministry's bylaws describe the program as "inherently Christian" and say it promotes "a holistic, faith-based approach to bring healing to mind, body, heart and soul."

In addition, the Faith Works Standards of Practice states: "We are as individuals to be growing in our own faith life by regular church attendance, prayer, Bible study and seeking Spiritual direction from a Pastor/Shepard [sic] in our faith community."

Faith Works' participants receive counseling and job training, but the group also offers Bible study, prayer meetings and spiritual counseling to recovering addicts. Faith Works' staffers, meanwhile, are expected to attend church services and are asked to counsel participants on developing a personal relationship with God through Jesus.

Faith Works uses a 12-step approach similar to Alcoholics Anonymous, but the Faith Works' handbook explains an important difference. "AA...stops short of recommending Christ to all," the group's materials explain. "However, at Faith Works we do."

On Jan. 8, U.S. District Judge Barbara Crabb agreed that direct aid to Faith Works blurred the church-state line and ordered Wisconsin to stop providing grants to Faith Works.

In her Freedom from Religion Foundation v. McCallum ruling, Crabb said the subsidies represented "unrestricted, direct funding of an organization that engages in religious indoctrination" and were therefore unconstitutional.

Faith Works had argued that the money it received from the state was used for nonreligious activities within the program. Crabb was not persuaded.

"Faith Works won the...grant in part because of its unique long-term, faith-based approach to drug treatment," Crabb concluded. "Faith Works cannot now try to excise religion from its offerings, saying that it contracted with the state to provide the wholly secular services of room and board without any reference to religion. This assertion rings hollow in light of the literature Faith Works provided the state.

"Taking into consideration Faith Works' daily activities as well as its faith-based approach to drug treatment, I conclude that the Faith Works program indoctrinates its participants in religion, primarily through its counselors," Crabb wrote.

Opponents of the Bush faith-based plan hailed the ruling.

"This is a tremendous victory for individual freedom," said the Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State. "It is also a major blow to President Bush's faith-based initiative. The provisions of the Bush initiative that offer funding of religion are now clearly unconstitutional, as many of us have been saying all along."

Indeed, the White House was well aware of the Wisconsin program and the lawsuit challenging it. During the presidential campaign, Bush visited Faith Works and announced that it was the kind of program he'd like to see the government support with tax dollars. More recently, Attorney General John Ashcroft had filed a "friend of the court" brief in the case, urging Crabb to rule in favor of Faith Works.

With the ruling against the program, opponents of the Bush plan have gained important legal and rhetorical ammunition.

Despite the victory, the Faith Works case is not over. Crabb ruled that Wisconsin's unrestricted grants to the program ran afoul of the First Amendment and must stop, but she did not rule on whether Faith Works may get paid for helping individuals who enroll as part of an "independent, private choice." As a result, Crabb will hold a trial to determine whether some of the assistance Faith Works receives from the state is direct or indirect.

Supporters of church-state separation are concerned that Crabb has left open the possibility that a distinction can be made between direct aid to religious groups and aid that goes to religious groups through individuals. In other words, Crabb may conclude that direct funding from the government to a religious group is unconstitutional, but voucher-like aid is not. These details will matter a great deal in determining how a faith-based proposal can be shaped legally, and as a result, the case will be watched closely as the litigation continues.

Nevertheless, the initial legal defeat for Faith Works represents a political setback for the administration as it continues to argue that the faith-based initiative is sound as a matter of law and policy.

The federal court decision was not the only stumbling block the administration faced over the winter in its drive to rally support for Bush's faith-based plan. Complicating matters further for the White House, a new report has been released outlining a broad consensus on appropriate ways to provide assistance to those in need through faith-based and other community organizations. Much to the chagrin of the administration, the accord hardly resembles the plan Bush proposed or the House legislation (H.R.7) the administration heartily endorsed.

On Jan. 15, more than 30 representatives of groups that have been involved in the debate over funding faith-based social services released "Finding Common Ground," the result of a months-long discussion of groups from across the political and ideological spectrum. The report gives 29 recommendations on how best to offer community help for those in need, but steers far clear of the direct public funding of religion recommended by the president and sponsors of the faith-based initiative in the House.

"I am pleased at the number of actions we agreed can be taken in this area without raising constitutional issues," said AU's Lynn, who worked closely with the Working Group on Human Needs and Faith-Based Community Initiatives, the organization that sponsored the effort to find common ground. "I hope this is the direction Congress and the president take to move beyond the divisiveness of the debate in the House last summer."

In addition to Americans United, Working Group's members ranged from representatives of the American Civil Liberties Union, the American Jewish Committee and People For the American Way to the Southern Baptist Convention, the Becket Fund for Religious Liberty and Evangelicals for Social Action.

While the Bush approach has been to largely ignore constitutional concerns surrounding his faith-based initiative, the report says efforts to help the needy "can and must be carried out in ways that are effective and that strengthen our democracy while upholding our commitment to religious liberty as guaranteed by the First Amendment to the U.S. Constitution."

Lynn said that although Americans United remains adamantly opposed to government funding of religion, he was pleased to see the report outline other types of approaches that help people in need. Among the recommendations are a major increase in private giving to charities, changes in the tax code to encourage individual and corporate donations and streamlining the federal process to encourage formation of charities.