Gainesville, Texas—It’s an hour until dawn, but the 36 youths who live in Dorm 56 of the Gainesville State School are already groomed, dressed and down on their knees in prayer.
“In the name of Jesus, I ask that our hearts be fertile ground,” prays Bernard Roberson, 17, who frequently assists at the 6 a.m. daily devotional service.
For the next 45 minutes, the 13- to 19-year-old inmates engage in heartfelt discussion on the topic of “Is God Real?” led by a volunteer from a nearby Baptist church with a decidedly creationist view of the world. Some give personal testimonies about how God shows himself in their daily lives. Others talk about prayers that have been answered. At the end of the service, they all link arms and sing, “Jesus Loves Me.”
Welcome to the Faith-Based Dorm at the Texas Youth Commission’s Gainesville State School, which houses 340 of the state’s most serious and chronic male juvenile offenders. For many, this is the last chance to turn their lives around before the legal system begins treating them as adults.
The dorm is an 11-month-old experiment designed to prove that injecting a strong spiritual component into youth corrections work can produce easier-to-handle inmates and reduce recidivism after they return home.
It is also one of a growing number of church/state collaborations being created around the country by proponents of “charitable choice,” the name taken by a movement dedicated to facilitating partnerships between faith-based organizations and government to tackle social problems. Sen. John C. Ashcroft (R-Mo.) coined the term four years ago when he first introduced federal legislation to permit religious organizations that receive government funds to retain their religious character.
“With charitable choice, we have the opportunity to enlist churches and synagogues in restoring shattered lives,” Ashcroft says. “Charitable choice unleashes healing agents faith, compassion for the needy, the desire to serve others to heal the culture’s wounds.”
For most of its short life, the charitable choice movement has operated quietly, with nowhere near the attention given its twin cause, the school voucher movement. A poll would probably find few Americans who even know what the term means.
But charitable choice has recently moved into the national spotlight with endorsements by two of the leading candidates for president. In a speech in May, Vice President Al Gore, said, “I believe we should extend this carefully tailored approach to other vital services where faith-based organizations can play a role – such as drug treatment, homelessness, and youth violence prevention.” Texas Gov. George W. Bush, the frontrunner for the Republican nomination and a longtime proponent of charitable choice, went even further in a speech last July: “In every instance where my administration sees a responsibility to help people, we will look first to faith-based organizations, charities and community groups that have shown their ability to save and change lives.”
A third major presidential candidate, former Sen. Bill Bradley of New Jersey, has not addressed the issue during his campaign. But as a senator, he voted for Ashcroft’s charitable choice amendment to the welfare reform bill. So if any of these three candidates is elected president next year, charitable choice seems likely to figure in the continuing national conversation about how to solve social problems.
From Concept to Law
Faith-based organizations have provided social services in the United States since its founding. Government agencies regularly contract with religiously affiliated organizations, such as the Salvation Army, Catholic Charities and Lutheran Family Services, to provide child care, foster care and youth development programs, among others. Volunteers propelled by faith are among the workhorses that many nonprofit groups depend on.
So what is it about charitable choice that’s new – and, critics would argue, ominous?
For one thing, charitable choice means much more than collaboration between government agencies and faith-based organizations.
Until recently, concerns over crossing the church/state constitutional divide have led government agencies to require that faith-based organizations with government contracts sanitize their premises of religious symbols, hire people regardless of their religious views and keep religious messages out of the services they deliver.
In contrast, charitable choice lets faith-based organizations with government contracts refuse to hire people who don’t share the organizations’ faith, and to retain religious art, icons, scriptures and other spiritual symbols on the premises where they provide services. Some proponents of charitable choice also argue that faith-based organizations are free to weave religious messages into the social services they provide, as long as they have a separate, nongovernment funding source for their proselytizing and refer clients who object to an alternative, nonreligious program.
Carl H. Esbeck, a law professor at the University of Missouri-Columbia and the new director of the Center for Law and Religious Freedom, in Annandale, Va., is the self-acknowledged “progenitor of the idea” of charitable choice.
In 1995, in a speech at the DePaul University College of Law in Chicago, Esbeck laid out his vision for a law that would allay fears of religious organizations that collaboration with state agencies would lead to government regulation. Esbeck argued that given recent court rulings, such fears were no longer valid.
“The Supreme Court had been moving away from strict separation of church and state, to more of a neutrality view, and legislation and regulations hadn’t yet caught up,” he says. “I talked about coming up with a way that government could guarantee organizations that their essential religious character would be unaffected should they choose to participate in a government funding program.”
Esbeck gave a copy of his speech and a draft of a model law to Annie Billings, a former student, who shared them with her boss, Sen. Ashcroft. “He was very interested,” recalls Billings, who is Ashcroft’s legislative counsel. “He said that back when he was governor of Missouri, he was able to use faith-based organizations to provide social services, and raised the possibility of trying to do that with welfare reform. We put our heads together and came up with a provision that assured that faith-based organizations would be welcome to participate in the provision of social services, just like any non-religious organizations.”
Ashcroft initially incorporated the concept of charitable choice into his own proposal for welfare reform. When it became clear that the Personal Responsibility and Opportunity Act was on a faster track, Ashcroft persuaded his Senate colleagues to attach his charitable choice amendment to it. The law passed, launching the most radical overhaul of federal welfare policy in 60 years. As a result of the charitable choice amendment, scores of churches and other faith-based groups around the country are now receiving government funds to help welfare recipients ready themselves for work.
Last year, Ashcroft successfully pressed Congress to attach a similar amendment to the Community Opportunities Act, which authorized $542 million annually for assorted services to poor people, including Head Start and heating aid.
This year, Sen. Bill Frist (R-Tenn.) sponsored a charitable choice amendment to the mental health and drug treatment appropriations bill. It could pave the way for more faith-based organizations to receive federal contracts to work with drug users.
Next year, Ashcroft plans to push hard for the passage of the Charitable Choice Expansion Act, which languished this year. It would facilitate church-state collaborations for nearly all federally funded social programs.
Texas Leads the Way
No state has taken charitable choice more to heart – and some would say, to extremes – than Texas.
Even before the U.S. Senate began debating charitable choice in 1996, Texans were engaged in a furious debate over restrictions placed by state regulators on faith-based providers of drug treatment and day care programs. On July 17, 1995, about 250 supporters of Teen Challenge-San Antonio marched in front of the Alamo demanding an end to “government oppression.” The impetus was an order from Texas Commission for Alcohol and Drug Abuse (TCADA) to the San Antonio chapter of Teen Challenge to either comply with the licensing requirements for residential drug rehabilitation programs or shut down.
The Institute for Justice, a Washington-based public interest law firm, helped broker a consent order that permitted Teen Challenge-San Antonio to keep operating without a license, resolving the conflict. But the incident fueled an already smoldering movement in Texas to knock down government barriers to involvement by Faith-Based programs in providing social services.
In May 1996, Gov. Bush appointed an Advisory Task Force on faith-based Community Service Groups to identify obstacles to faith-based groups. Seven months later, the task force issued “Faith in Action: A New Vision for Church-State Cooperation in Texas,” a blueprint for improving the climate for faith-based social services. The following year, the Texas Legislature sent Gov. Bush bills embodying many of its recommendations. They:
*exempted from licensing and regulation any nonmedical alcohol and drug treatment programs, such as Teen Challenge, that rely exclusively on faith;
*permitted church-run child-care facilities to seek private accreditation instead of licensing by the state;
*encouraged state correctional agencies, including the Texas Youth Commission, to use faith-based rehabilitation programs.
Bush signed all of the bills into law. As a result of one of them, the Texas Workforce Commission has so far signed 13 contracts with faith-based organizations to provide services to welfare recipients, including microenterprise development training, job search coaching, child care, and job skills training. And the state’s 28 local Workforce Development Boards have either signed contracts or initiated new relationships with more than 200 faith-based organizations, ranging from such long-term providers of social services as Catholic Family Services to storefront missions to large innercity churches.
Another handful of similar bills came out of Texas’ most recent legislative session, and again, Bush signed them all into law. They include:
*the Texas Religious Freedom Restoration Act, which requires the state to demonstrate a “compelling state interest” before restricting an individual’s religious freedom;
*a law requiring the Texas Department of Human Services to provide liaisons to faith-based organizations;
*a law requiring Texas’ 28 local workforce development boards to reach out to religious social ministries;
*a law permitting faith-based groups to acquire surplus and salvage property from the state;
*a law that permits state funding of faith-based crime-
fighting initiatives, including the Inner Change prison ministry, within the Texas Department of Criminal Justice.
“Recent court decisions have chipped away at the rock of religious freedom, one small action at a time, one bureaucratic rule, one regulatory decision, one threatened lawsuit,” Bush said as he signed the laws last June. “That is unacceptable in Texas. Texas will not stand for government interference with the free exercise of religion.”
Predictably, religious denominations and special interest groups have lined up on both sides of the charitable choice debate. The proponents are largely evangelical Christians and Southern Baptists. The policy-setting boards of many other Protestant churches, including the Presbyterian Church (U.S.A.), United Methodist Church, General Conference of Seventh Day Adventists and United Church of Christ, are at least skeptical if not opposed, as are most Jewish groups. And many religious groups, including Muslims and Mormons, have simply stayed out of the debate.
Americans United for Separation of Church and State is spearheading opposition, along with allies such as the American Civil Liberties Union, the American Federation of State, County and Municipal Employees, and the Institute for Educational Leadership. Among the groups supporting charitable choice are the Annapolis-based Center for Public Justice, The Christian Coalition, Focus on the Family, the D.C.-based Ethics and Public Policy Center, the Virginia-based Institute for Youth Development and many groups allied with the Christian right.
Ironically, Teen Challenge, the faith-based drug rehabilitation approach whose problems launched the Texas charitable choice movement, isn’t supporting charitable choice as presently conceived. “There’s a non-discrimination clause which says we would have to hire homosexuals,” says the Rev. David J. Scotch Sr., accreditation and curriculum coordinator at world headquarters in Springfield, Mo. “We’re not willing to do that because it’s against our religious beliefs. We would not accept federal funds until that problem is taken care of.”
As is true with many policy initiatives, some of the momentum behind charitable choice is coming from foundations and social policy institutes that are looking for new approaches to social problems that sometimes seem intractable. Public/Private Ventures, the Manhattan Institute, the Brookings Institution and the Pew, Kellogg, Ford, Piton, San Francisco and Heritage foundations all have faith-based initiatives of some sort.
The movement has also attracted a social scientist star: John DiIulio Jr., the University of Pennsylvania professor best known for his controversial prediction several years ago of an increase in juvenile “superpredators.” DiIulio is working with a Public/Private Ventures project called Partnership for Research on Religion and At-Risk Youth, or PRRAY, which will provide research, funding and technical assistance to inner-city ministries in six to eight communities for five years.
DiIulio argues that youth workers motivated by passion and faith are more likely to reach disadvantaged youth than those who are just working for a paycheck and utilizing what he considers failed treatment approaches.
“Every treatment modality known to psychiatry, psychology or social work begins with deficit assessment,” he explained in Christianity Today last spring. “You come in fatherless, abused, illiterate; and they say, ‘We’re going to help you. You’re going to get literacy, and you’re going to get counseling, and you’re going to talk to your probation officer. Meanwhile, we’re not requiring anything of you. You have so many deficits, you have to make so much progress, it will be some time before we ask anything of you.'”
Someone using a spiritual approach, he said, is likely to tell the youth, “It may be true that you had nobody, but let me tell you something: God loved you, even when you didn’t know. … I love you, and I’m there for you. And I’m going to be there for you.
“‘And where am I? Right over there. Right in that basement over there. Right through that door, 24/7/365, that’s where you’ll find me. I’m not here just for the afternoon, 9 to 5, and when I get promoted, somebody else will come.”
Bad for Churches?
Opponents of charitable choice take pains to point out that they are not opposed religious institutions working to eradicate poverty, juvenile delinquency, child abuse or homelessness.
“In no way do I want to suggest that religiously affiliated institutions should not play a part in tackling social problems,” says Melissa Rogers, associate counsel for the D.C.-based Baptist Joint Committee on Public Affairs, which represents 11 Baptist conventions (though not the gigantic Southern Baptist Convention). “They should. But it’s much better for the groups to seek out different sources of funding without strings attached.
“We would encourage churches to rely on private subsidies, whether it’s foundations or corporate sponsorships. That will leave them most free to administer their programs, which, quite frankly, often have a genius about them which would be put at risk by accepting government funds. What makes these programs work so often is the faith element.”
Critics of charitable choice believe that proponents haven’t stopped to think about what churches might be getting themselves into. Rogers worries about “charitable choice becoming an opportunity for intrusive government control over religious entities.”
Rogers notes that once a church accepts a government grant, it in effect becomes a government agent. “Do they become responsible for policing their clients?” she asks. “Do they have to cut off benefits to poor people who break the rules? If so, that is quite a far cry from the notion of sanctuary, which is what churches should be.”
Tamar Galatzan, associate counsel for the western states office of the Anti-Defamation League, which is monitoring church/state collaborations in California, says loopholes in charitable choice laws leave too many questions unanswered.
“What is the mechanism that the state or counties are going to create to insure that the money’s being used for the purposes it’s supposed to?” Galatzan asks. “Right now, there is no provision in the welfare law for spot checks. Is the program working? Are participants getting whatever the service is that the organization claims to be providing? Is there proselytizing going on?
“There’s a question as to whether you’re going to have to put a county welfare officer in every church, synagogue, or mosque that accepts a government contract.”
The Constitutional Question
Is charitable choice constitutional? The First Amendment says, “Congress shall make no law respecting an establishment of religion.”
Knowing that any perceived attack on the First Amendment would attract legal challenge, Ashcroft’s staff included sections in the law that they believe simply codify the Supreme Court’s most recent rulings on church-state issues. “We didn’t just slap this together,” Billings says. “Sen. Ashcroft said, ‘I want this to line up with what the Constitution says.'”
Ashcroft was “extremely concerned” that the measure not be viewed as coercive, Billings said. “He wanted to make sure that anything we craft makes clear that a beneficiary has the right not to receive services from a religious organization if they’re not comfortable.”
The result is a section in the charitable choice amendment to the welfare law that says an alternative nonreligious organization of equal value and accessibility must be provided to any client who objects to the religious character of the faith-based organization to which he’s come for government-funded services. The charitable choice amendment to the Community Opportunities law contains a similar clause, as does Frist’s amendment to the mental health bill.
Even with those protections, the U.S. Justice Department has made clear its reservations about the constitutionality of providing government funds to “pervasively sectarian” organizations like churches. President Bill Clinton took note of them in October 1998 when he signed the Community Opportunities law. “I construe the act as forbidding the funding of pervasively sectarian organizations,” Clinton said in his signing message.
Americans United for the Separation of Church and State believes that all charitable choice laws introduced to date are unconstitutional, but hasn’t yet identified a program to challenge in court.
“We are keeping our eyes open for constitutional violations,” says Julie Segal, the group’s legislative counsel. “People are still trying to figure out where the line is to be drawn. We’re waiting for somebody to cross it. So far, from what we can tell, the faith community is really being responsible.”
Esbeck of the Center for Law and Religious Freedom believes charitable choice will survive a court challenge. “The law doesn’t establish a preference for a religion,” he says. “Rather, it establishes an even playing field. It says that government should be neutral when it comes to inviting providers to participate in funding programs.”
Esbeck characterizes the concept of charitable choice as “the middle ground” which, he says, is “why you see both Governor Bush and Vice President Gore supporting it.”
“They’re responding to that huge upsurge of inner-city poor who are saying, ‘This is what we want because religious institutions are the only institutions which have not abandoned us, and these are the institutions that offer us hope and treat us holistically and have a success record, whether it’s in drug abuse cures or getting young guys and gals to refrain from sexual activity,'” he says.
“It’s giving the poor and the needy what they’re asking for.”
‘This Has Been Ordained’
Back in Gainesville, the youth workers who interact every day with the boys in the Faith-Based Dorm aren’t spending much time worrying about whether what they’re doing is constitutional or not.
“I know it’s going to get political, but this was envisioned long before politics was ever in the picture,” says Chaplain Pamela Wiebe, who works tirelessly to create a round-the-clock Christian atmosphere in the Faith-Based Dorm.
“I’m sure we’ll be tested in the courts. We’re praying that we won’t, but we’re preparing for it. But I have no fear. I believe with all my heart that this has been ordained.”