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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.

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;


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