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35 Clearinghouse Rev. 615 (2001-2002)
Casting Aside the Constitution: The Trend toward Government Funding of Religious Social Service Providers

handle is hein.journals/clear35 and id is 615 raw text is: Casting Aside the Constitution: The Trend Toward Government Funding of Religious Social Service Providers By Alex j. Luchenitser Over the last several years, government bodies have increasingly utilized religious organizations to provide social services. This trend began in 1996, with the pas- sage of charitable choice legislation designed to promote the use of religious organizations in the delivery of benefits under a few federal programs. Funding of religious social service providers pursuant to charitable choice and similar state faith-based programs conflicts with the U.S. Constitution in sev- eral ways. Perhaps the most controversial aspect of charitable choice is that it permits religious organizations to discriminate in employment based on religion with re- spect to positions that are federally fund- ed. This characteristic of charitable choice runs afoul of long-standing constitutional law principles that bar the government from aiding private discrimination. Charitable choice also allows govern- ment funds to be used in service programs that involve religious instruction, worship, or proselytization. This element of chari- table choice is inconsistent with applica- ble case law on the constitutionality of government aid to religious organizations. Faith-based government funding pro- grams can violate the Constitution in other ways, including by coercing benefit recip- ients to take part in religious activity. I. Government Funding of Religious Social Service Providers Government bodies contracted with reli- giously affiliated organizations, such as Catholic Charities, to provide social ser- vices long before the passage of the first charitable choice legislation in 1996. But such arrangements were much different from what is permitted under charitable choice. Funding recipients generally formed nonprofit organizations that were separate from their associated religious entities. For the most part, the religious- ly affiliated funding recipients provided solely secular services, did not inject reli- gious activities or proselytization into their work, and did not discriminate in employ- ment based on religion.1 All that began to change with the pas- sage of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, the federal welfare reform law.2 The Act contained a provision, commonly referred to as charitable choice, de- signed to promote government funding 1See, e.g., Steven K. Green, Charitable Choice and Neutrality Theory, 57 N.Y.U. Ann. Surv. Am. L. 33, 35-37 (2000). 2 Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105. JANUARY-FEBRUARY 2002 I JOURNAL OF POVERTY LAW AND POLICY Alex J. Luchenitser is litigation counsel for Americans United for Separation of Church and State, 518 C Street NE, Washington, DC 20002; 202.466.3234; luchenitser@au.org. 615

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