When on the wrong path, the best course is to turn back

By K. Hollyn Hollman

Church-State Intersection
February 5, 2003

One of the most powerful arguments for the separation of church and state is the need to keep religion free from government regulation. While religious people differ in their level of commitment to church-state separation, the desire to minimize government intrusion in the affairs of religious institutions appeals to all. For this reason, we all should carefully consider the likely consequences of recent proposals to expand government funding of religious organizations.

The fact that government regulates what it funds is hardly surprising. It is true that "he who pays the fiddler calls the tune." But opposition to regulation threatens to compromise democratic accountability. Would it make sense to exempt religious organizations from standards that we require of others who provide government services? This fundamental dilemma is not easily avoided or resolved, as two recent developments in the Bush administration's "faith-based" initiative reveal.

First, the Bush administration proposed a new rule for the Department of Housing and Urban Development that would allow religious organizations to receive funding for building projects. The proposal would allow the use of federal dollars to buy, rehabilitate or build structures used for religious and nonreligious functions. The government funds could be used for any part of the building dedicated to approved nonreligious activities, such as a soup kitchen or a counseling center. Private funding would be required to pay for the areas used for worship, such as a chapel or sanctuary.

In addition to being at odds with Supreme Court rulings on funding of buildings at religious colleges, this proposal would inevitably lead to one of two problems. Either the rule against funding of religious uses would not be enforced, making a mockery of the Constitution, or its enforcement would compromise the autonomy of religious institutions. Can you imagine government officials making church visits to determine if a room paid for with tax dollars was illegally being used to house a Bible study? Rep. Barney Frank, D-Mass., was quick to ask, "Are we going to start sending in the inspector general to charge people with committing a bar mitzvah?"

Second, perhaps in reaction to criticism of proposals that expand direct government funding to religious organizations, the administration's recent "faith-based" focus has been on vouchers. During the State of the Union speech, President Bush announced plans to expand his initiative in the area of drug and alcohol rehabilitation. His honored guests were representatives of groups that address addiction through spiritual transformation, as opposed to medical treatment. Because such groups rely on Christian beliefs, prayer and scripture readings, direct government funding of such programs necessarily would involve government indoctrination of religion in violation of the Establishment Clause. The president's advisers contend that the legal issue is avoided because the vouchers are given to individuals who in turn choose where to seek treatment.

The application of the Supreme Court's Zelman case in this context is suspect. The constitutionality of the Cleveland program hinged on recipients having a wide range of educational choices that included religious and nonreligious ones. The fact that public schools do not turn away students was significant. The availability of choices in the drug and alcohol treatment arena is less certain; wait lists at secular drug treatment programs are often lengthy.

Even if found to be constitutional, new voucher programs would invite public scrutiny of religious social service providers. Again, one of two problems would arise. Either religious providers would be subject to potentially burdensome licensing requirements or the government would indirectly fund certain programs that fail to meet basic standards. These paths lead to two unappealing alternatives. The only safe course is to turn back.