Wrecking Crew

Using Executive Orders, The Bush Administration Seeks To 'Knock Down The Wall' Blocking Federal Funding Of Church Social Programs

With the 2004 general election approaching and his standing in public opinion polls diminishing, President George W. Bush took aggressive actions in September to please an important constituency by advancing his much touted "faith-based" initiative.

At a White House press briefing on Sept. 22, Jim Towey, director of Bush's Faith-Based and Community Initiatives Office, announced the creation of regulations and proposals for new ones to implement the "faith-based" initiative, which is popular among many Religious Right leaders. The Washington Post described the announcements as "the most significant steps so far in Bush's plan to pursue his 'faith-based' initiative through administrative power" after encountering significant resistance in the Senate.

Bush's initiative has been stymied in Congress. To the chagrin of even some of his supporters, the president refuses to compromise on his insistence that church-state separation is not undermined by direct funding of pervasively religious groups and that those religious groups must be permitted to operate federally funded social services without abiding by anti-discrimination laws. Thus, the president has had to fall back on issuing executive orders, which could some day be rescinded by a different administration.

In Dec. 2002, Bush ordered federal agencies, including the Departments of Labor and Health and Human Services, to create or alter regulations to increase access to federal funding for religious groups offering social services for the nation's less fortunate. At the September press briefing, Towey told reporters that four regulations had been finalized and six more proposed and that his boss would continue employing "every single tool that he has" to move the faith-based initiative forward.

"The President's faith-based initiative is making progress because we're seeing more and more organizations seeking to compete for federal grants to provide these services that they know how to provide very well," Towey told the reporters gathered at the White House. "So these six new regulations, and the four finalized ones, represent a continued march by the President in the faith-based initiative's effort to spread compassion in our country and make sure that the most effective programs are funded; he wants to see results.

"This is not about funding religion," Towey continued, "but about funding results and identifying the most effective providers and knocking down the wall that separates the poor from these programs."

A reporter at the briefing asked Towey whether the new Department of Labor regulations favored religious groups by allowing them to receive public funds even if they discriminate in hiring. Secular social service providers would still be barred from discrimination in hiring in order to receive federal funds.

As has been his wont, Towey defended the faith-based agenda's demand that religious groups that discriminate in hiring should not be barred from receiving federal funds to operate social services.

"In any employment decision, there's discrimination," Towey declared. "The World Wildlife Fund will make discrimination based on people they hire who share their tenets and beliefs. Universities hire smart people."

Towey was joined at the press gathering by the secretaries of Labor and Housing and Urban Development (HUD) and the deputy secretary of Health and Human Services (HHS). All of them announced their finalized or proposed regulations and the amounts of federal funds that would be available to church-based and community groups.

HHS Deputy Secretary Claude Allen said regulations are now in place to allow religious groups to apply for nearly $20 billion in social service grants dealing with substance abuse, welfare and mental health. Allen also announced the continuation of the Compassion Capital Fund, which provides grants to smaller religious and community charities seeking to run social service programs. Allen said the Fund will award $30.5 million in grants to religious and other groups to help bolster their ability to run social service operations.

"The Compassion Capital Fund is expanding the role that faith-based and community groups play in providing social services to the needy," Allen said at the press briefing.

HUD Secretary Mel Martinez announced that the department had finalized regulations that will make religious groups eligible to compete for $8 billion in federal grants. The grants will be available for all of HUD's "major homeless programs." Martinez also noted that the new regulations state that religiously run shelters or missions will be able to receive the public financing even if their shelters are adorned with religious symbols. Indeed, HUD dollars will also be available to religious groups so they can build or repair their shelters, as long as those funds do not go to support a principal place of worship.

Elaine Chao, secretary of Labor, said the department is proposing a rule that would allow job training vouchers to be used by citizens seeking employment in churches or other religious organizations. Chao also announced that the department would now permit religious groups to obtain federal contracts even if they discriminate in hiring based on religious beliefs. Secular nonprofits, however, could lose federal funding or contracts if they chose to discriminate in hiring based on religion. The secretary maintained that religious groups "play a critical a role in helping dislocated and unemployed workers find new job opportunities."

Five other regulations were being proposed as well by the Departments of Education, Veterans Affairs and Justice, all with the same goal of implementing the president's faith-based initiative, Towey said.

The president chose to issue executive orders to implement his faith-based program, because his campaign for legislation containing the initiative has stalled in Congress.

At a Sept. 13 $1 million fund-raising dinner for a church-based social service center in Houston, Bush nonetheless continued to call on Congress to pass his faith-based initiative.

"Our government must not fear the application of faith in solving social problems," Bush told an audience of more than 850 at the Power Center, a multiservice community center sponsored by the Windsor Village United Methodist Church. "Congress needs to hear the call. Congress needs to not thwart efforts. If a faith-based program provides help to anybody regardless of their religion, we shouldn't fear that program."

At that fund-raiser for an agency of the church that Bush is a member of, the president called the separation of church and state a "noble doctrine," but declared that his faith-based program posed no danger to that First Amendment principle. He said "we must not worry about people of faith receiving taxpayers' money."

U.S. lawmakers, however, have expressed concerns regarding the Bush plan to funnel billions of tax dollars into religious groups' coffers.

Indeed, many members of Congress have opposed the exdpandsive nature of Bush's religious funding program, including its provision allowing religious groups to ignore federal, state and local anti-discrimination laws when operating government-financed social service programs.

Adding to the faith-based initiative's troubles in Congress has been the president's refusal to compromise on the most controversial elements of the plan.

The administration's obstinacy resulted in the Senate's approval of a bill in early spring that was stripped of much of the president's faith-based initiative, but contained tax incentives for charitable giving (see Church & State May 2003, "Faith-Based Victory!"). The Washington Post said the bill represented a collapse of one of Bush's "signature domestic" initiatives. Marvin Olasky, a former Bush adviser who coined the term "compassionate conservative," described the bill as "a shadow of what was hoped for."

Bush's faith-based plan drew criticism right from the get-go, when he announced the creation of the White House Office of Faith-Based and Community Initiative in early 2001. And some of that criticism came from supporters of his administration.

P.J. O'Rourke, an author and columnist with a libertarian bent, noted in a 2001 Rolling Stone article that allowing religious groups to operate tax-funded government programs would result in a "plethora of lawsuits."

Cal Thomas, the conservative nationally syndicated columnist, wrote in a 2001 column that religious organizations accepting federal dollars risked "becoming an appendage of the party in power that financially smiles upon them."

Author and columnist for the New York Observer Joe Conason believes the "faith-based" initiative has already morphed into a "patronage operation."

"During the 2002 midterm-election campaign, Adminisdtration officials suddenly showed up at inner-city churches, seeking to entice African-American ministers with federal funding," Conaddson wrote in his 2003 best-seller Big Lies: The Right-Wing Propaganda Machine and How It Distorts the Truth. "A half-million dollar grant was quickly slated for Pat Robertson's quasi-charitable Operation Blessing International Relief and Development Corporation, which the Christian Coalition founder has in the past used to advance his diamond-mining ventures in the Congo region."

The concerns and criticism of the administration's faith-based agenda have not waned since its introduction. Legislators, civil rights groups, academics and reporters have continued to question the administration's arguments that the initiative would not unconstitutionally support religious work, that religious social service providers are more successful than non-religious providers and that religiously based social services have traditionally been barred from receiving government funds.

After announcing the latest regulations and proposals pushing the faith-based initiative forward, a George Washington University professor told The Washingdton Post that the new regulations could permit religious groups to advance their missionary work with the help of public funds.

"These regulations might not preclude funding for a substance-abuse program that includes religious inspiration for its participants," said Ira C. Lupu, a constitutional law professor at GW's law school. "They might say they want to motivate them with lessons from the Bible."

A Sept. 26 St. Louis Post-Dispatch editorial chastised Bush's frequent claims that religious groups have traditionally been barred from receiving funding for their social service works.

"Catholic Charities and Lutheran Family Services already get the kind of federal grants now being made available to other religious groups," the newspaper's editorial board noted. "But these top notch groups agree not to discriminate in hiring and not to proselytize. At a time when Mr. Bush is starving successful social service providers, he shouldn't be funding new groups that don't meet government nondiscrimination and accountability standards."

At the Sept. 22 press briefing, a reporter asked Towey and the secretaries who in the government would monitor religiously-run social services to ensure that "if a client wants services, they don't necessarily have to go through a prayer or this, that or the other in order to get the services."

Only Secretary Chao responded to the question. "In terms of oversight," Chao said her department has "a huge infrastructure that takes a look at whether the programs are being carried out as per the statutes and the legislation and the regulations. There's a whole performance evaluation infrastructure that is in place in the Department of Labor that will, in fact, make sure that these grants are being given out and administered according to the statutes and the regulations."

HUD's final rule, "Participation in HUD Programs by Faith-Based Organidzations," maintains that religious social service providers will be duly informed that they must not use the federal funds in support of advancing their religious messages. "HUD believes that existing regulations and this rule are clear that faith-based organizations, using direct Federal funds for certain activities, must separate their inherently religious activities from the federally funded activities," the rule states. "HUD believes that a common sense approach to this regulation supported by HUD guidance, not a detailed regulatory approach, is the better one."

The administration's assurances that the "faith-based" initiative contains adequate safeguards against public financing of religious missions have done little to quell complaints that the initiative ignores constitutional strictures. In mid-August, U.S. Sen. Jack Reed (D-R.I.) said government policies "should redspect the separation of church and state, and it's dangerous what this administration is doing with their faith-based initiatives."

In a column for the legal repository website, FindLaw, constitutional scholar and law professor Marci Hamilton warned that the federal government would have to closely scrutinize how religious social service providers used their government funds.

The president frequently touted his faith-based plan on the campaign trail in 1999 and 2000. The faith-based initiative was the centerpiece of his relatively thin domestic agenda, which primarily centered on cutting taxes. Nearing the end of his first term with no faith-based bill to sign, the president has used his executive powers to put into action an initiative roundly attacked for showing little concern for the U.S. Constitution or civil rights laws.

Barry W. Lynn, the executive director of Americans United for Separation of Church and State, which helped create and lead a coalition of groups opposed to major components of the faith-based plan, decried the administration for "ignoring constitutional strictures."

AU was among many public interest groups that submitted their concerns to the numerous federal agencies that produced the new regulations advancing the faith-based initiative. Although HUD conceded that the "majority of the commenters expressed concern that the proposed regulatory changes would conflict with the Establishdment Clause and related Supreme Court cases by authorizing Federal funding for churches," it refused to create a regulation in line with those concerns.

"The ideologues in this administration were clearly not interested in listening to criticism of their plans to push this religious funding scheme forward," Lynn said. "These regulations were set in stone from the moment the intentions to create them were announced."

Lynn added that AU will monitor grants made under the regulations and will be prepared to challenge in the courts any funding that violates constitutional principles.