A verdict on faith-based partnerships under Obama and Bush
"Obama stimulus pours millions into faith-based groups," read the title of a December 3, 2010, Politico article. It reported that $120,000 in stimulus funds (funds made available by the American Reinvestment and Recovery Act of 2009) went to Christian Churches United of Harrisburg, Pennsylvania, to pay for food and shelter for local homeless people, and $277,000 was awarded to the Chicago-based Inner City Muslim Action Network for a green-jobs program. To promote energy efficiency, stimulus funds bought an Indiana church a new heating and cooling system and new windows for a church-related school in Wyoming, according to Politico. Overall, at least $140 million in stimulus money has gone to faith-based groups, Politico said.
The Politico piece raised an important question: Almost ten years after President George W. Bush opened the first White House Office of Faith-Based and Community Initiatives and two years into the presidency of Barack Obama, is there any difference between these administrations' policies and practices on partnerships with community organizations, both religious and secular?
Executive orders signed by Obama and Bush provide some fodder for this discussion, as does Politico's reporting and data available at the recovery.gov website, the website that tracks spending of stimulus money. These materials reveal that there are many points of continuity between the two administrations on these issues but also some crucial differences.
Both President Obama and Bush have said the government must allow religious organizations to compete on an equal footing with secular organizations for federal social service funds. Spot checks of information on recovery.gov suggest that this policy is being observed.
For example, one component of stimulus funding was aimed at preventing individuals and families from becoming homeless and at helping people who are already homeless. The federal Department of Housing and Urban Development granted $621,187 to Dauphin County, Pennsylvania, for these purposes, and it in turn made sub-awards to seven Pennsylvania nonprofits that were selected on a competitive basis. As Politico noted, one of these nonprofits is Christian Churches United of the Tri-County Area (CCU), whose goal is "to provide assistance to many more people in need than one church could provide on its own." The organization is supported by area churches but is separately incorporated from them. CCU received a subaward of $120,623 to provide services to people who are homeless or at risk of becoming homeless. Dauphin County also made six sub-awards to other nonprofits for these purposes, some with explicit religious motivations and others that articulate their goals in secular terms. (Politico did not discuss grants made to secular groups in its story, but information about religious and nonreligious organizations that receive stimulus funds appears on the recovery.gov website.)
The Obama and Bush administrations also have declared that religious organizations may retain a religious name and mission, select board members on a religious basis, and provide federally funded social services in buildings containing religious art, scriptures, and symbols. These policies aim to ensure that religious organizations are able to maintain their religious identities even as they deliver some government-funded services.
Further, both administrations appear to have implemented similar policies regarding government grants for capital improvements of buildings used for religious purposes, including houses of worship. According to the Politico story, Castleton United Methodist Church in Indianapolis, Indiana, received stimulus funds to install a new heating and cooling system. These funds were part of the Energy Efficiency and Conservative Block Grant Program, a program that helps American cities, states, and counties, reduce their total energy use. The federal Department of Energy made a grant to the state of Indiana for this and related purposes, and the state then used a competitive process to award grants to 60 small businesses, health care facilities, institutions for higher education, and nonprofits for energy efficiency upgrades to their facilities. In addition to Castleton United Methodist Church, other non-profits that received subawards include an animal shelter, Big Brothers/Big Sisters of Indiana, a day care center, a food bank, a museum, and another church.
Politico says EPA officials notified religious groups that, although "there ha[d] been some uncertainty and erroneous information" on the issue, "the Recovery Act has no prohibitions on the use of Recovery Act funds being used to benefit churches/faith-based institutions." This guidance was based on advice from the general counsel's office in the Department of Energy, which also said: "The [Energy Efficiency and Conservation Block Grant] statute and [State Energy Program] statute and regulations have no prohibitions on federal funds being used to benefit churches/faith based institutions. As long as the activity to benefit churches/faith based institutions is an approved, eligible activity pursuant to the [relevant statutes and regulations,] it may be funded by either program."
Like Bush, Obama also appears to have allowed churches and other houses of worship to seek direct federal social service funds. And, at least thus far, the Obama administration has permitted religious groups to make religion-based decisions regarding government-funded jobs, a policy former President Bush implemented widely. While then-candidate Obama promised to make changes to this policy once in office, and the White House has said it is reviewing these issues, the administration has so far left in place all of the policies the Bush administration developed on these issues, including a Department of Justice opinion and a provision in an executive order and associated regulations.
At the same time, an executive order President Obama signed on November 17, 2010, makes some important reforms of the Bush rules. This new order amends an executive order President Bush signed in 2002, and it applies to all federally funded social service programs. The changes the new order makes can be lumped into three broad categories.
First, the 2010 order clarifies some matters the 2002 order had left somewhat murky. In recent years, there's been confusion about whether providers could use government grant money to pay for counseling involving religious instruction, for example, or mix religious content into programs funded by government grants. The 2010 order makes it clear that direct aid cannot be used to pay for explicitly religious activities, meaning activities involving overt religious content such as prayer, worship, and proselytizing. It also calls on an interagency group to provide guidance on ways to cleanly separate any privately funded religious activities from a program subsidized by direct government aid. At the same time, the 2010 order emphasizes that religious providers are welcome to compete for government social service funding and maintain a religious identity as described above.
Another concern the new executive order sought to address was the fact that the 2002 order had said beneficiaries couldn't be required to "actively participate" in religious activities. This language did not make it clear that beneficiaries could not be required even to attend religious events or services. The 2010 order ends the ambiguity. It says beneficiaries have a right to refuse "to attend or participate in a religious practice."
Given some confusion about the rules that apply to subawards of federal funds, the new order also emphasizes that church-state standards and other standards apply to subawards as well as prime awards. In other words, subgrantees and subcontractors are subject to the same rules that apply to the nongovernmental organizations receiving grants and contracts, such as requirements that programs funded by direct federal aid must be separated from privately funded activities that are explicitly religious.
The second type of change the 2010 order makes is that it sets forth a number of key religious liberty mandates that had been missing from the 2002 order. It states, for example, that beneficiaries have the right to an alternative provider if they object to a provider's religious character, and that beneficiaries must be given written notice of their religious liberty rights at the outset. Similar rules have applied to federally funded substance abuse and mental health programs for years. This part of the new executive order is modeled on rules drafted by the Department of Health and Human Services during the presidency of George W. Bush in response to statutory requirements. The Bush administration, however, rebuffed requests to extend these rules to all federally funded social services. The Obama administration has acceded to them.
The 2010 order requires the government to monitor the programs it funds to ensure that they are following church-state rules, but it must do so in ways that avoid excessive church-state entanglement. It also makes it clear that decisions about awards of federal financial assistance have to be free from even the appearance of political interference and that such decisions must be made on the basis of merit, not religious affiliation or lack thereof.
The third kind of change the 2010 order makes is that it mandates greater transparency and uniformity in this system. Grant and guidance documents must be posted on the web along with lists of nonprofits receiving federal social service funds. The 2010 order also creates the first interagency working group devoted to developing uniform rules on these and other issues. This group will propose a set of changes and additions to federal policies and practices that are necessary to fulfill the terms of the new executive order. In addition to the terms mentioned above, other tasks the interagency group has been given include developing instructions for peer reviewers and drafting policies regarding training for governmental employees and nonprofit providers on these rules. This is the first time these important issues have been mentioned in an executive order.
In almost every case, the Bush administration was pressed to make changes like these, but it refused to do so. At the same time, it's important to note that reforms set forth in the 2010 executive order have the backing of a group that includes some who supported the Bush initiative as well as some who opposed it. The president brought this diverse group together under the auspices of a newly created Advisory Council on Faith-Based and Neighborhood Partnerships, and the 2010 order is a direct response to many of the Council's recommendations.
Finally, a change that falls outside the context of executive orders is worth noting. The approaches of the Bush and Obama administrations appear to be significantly different in terms of the attention they have given to nonfinancial partnerships with religious and secular nonprofits, partnerships in which funds do not flow from the government to a nonprofit. According to Bush White House materials, "[t]he guiding principle" of its faith-based and community initiative was that "faith-based charities should be able to compete on an equal basis for public dollars to provide public services." The Obama White House has continued financial collaboration with religious and nonreligious groups to serve people in need, but it has also placed heavy emphasis on non-financial partnerships aimed at accomplishing the same end. These include collaborations in which the government equips religious and secular groups with information about ways citizens may access needed government benefits and situations in which faith-based and other community organizations round up volunteers for after-school mentoring at public schools.
Some points of continuity between the Bush and Obama policies make good sense. For example, while the government should never favor religiously affiliated groups in the competition for social service funds simply because of their faith ties, it should allow them to seek such funding along with secular groups. The government works with a wide range of nongovernmental organizations to achieve secular ends in the social service arena. If faith-based organizations wish to compete for government funding and are willing to abide by the relevant constitutional and other rules that apply, they should be welcome to seek funds available to other nongovernmental groups.
Federal social service funds are not gifts to the nonprofits that receive them; they are critical supports for people who are suffering, supports many nonprofits supplement with other services they subsidize themselves.
One county official who administers the homelessness program mentioned in the Politico story told me he was "amazed at the number of people who are displaced and homeless [or] nearly homeless [these days] who have never relied on any form of public or government assistance in their life." These people have lost their jobs, and they have been unable to get new ones. Counties don't care whether the nonprofits receiving these grants are religiously affiliated or not, the official said. They simply look for organizations with strong track records, the capacity to manage government grants, and the ability to keep people off the street.
At the same time, the Obama administration has wisely taken much-needed steps to create more clarity, transparency, and constitutional compliance in the rules governing these partnerships. Its new executive order is a major achievement, and the administration deserves great credit for asking a diverse group of experts to seek consensus in this area and for implementing many of this body's recommendations. Consensus measures are more durable and help to minimize time spent in litigation and to maximize the time and energy we spend serving people in need. These reforms demonstrate appropriate respect for the Constitution and for the hard-working social service providers that don't have time to learn an entirely new rulebook every four to eight years.
Also, the Obama administration's emphasis on non-financial as well as financial partnerships is a welcome point of departure from Bush administration policies. Nonfinancial partnerships present far fewer constitutional issues and risks for religious integrity. Indeed, many religious bodies that have no interest in financial collaboration are open to cooperating with government in nonfinancial ways. These alliances have the power to do as much good as financial partnerships.
Still, more reforms are needed regarding the rules governing financial partnerships, reforms aimed at protecting religious autonomy and equal opportunity in federally funded employment. Churches and other houses of worship are special kinds of religious institutions, and the government often does and should treat them specially. Houses of worship should be required to form separate corporations in order to receive direct federal social service funds as a way of insulating them from government regulation and lawsuits; protecting their unique legal status, including the special exemptions these core religious bodies enjoy; and maintaining an appropriate separation of church and state. Further, government officials certainly should be engaged with both religious and nonreligious nonprofits that wish to work with the state to improve their energy efficiency. When determining appropriate ways to do so, however, these officials must consult not only the text of federal statutes and regulations but also First Amendment precedent. And while religious organizations should have full freedom to make religious calls regarding jobs subsidized by tithes and offerings, taxpayers are right to expect to be able to compete for positions created by government grants without regard to their personal religious beliefs or lack thereof. Thus, the Obama administration should undo Bush policies that broke with a long and proud tradition of equal opportunity in federally funded jobs regardless of religion or creed.
In sum, at this point, the Obama administration's policies deserve a mixed verdict. Its continuation of certain Bush administration policies is troubling, but it has also retained some sensible policies and made key reforms that will benefit people in need and strengthen our cherished tradition of religious freedom.
Melissa Rogers is a member of the Advisory Council and served on the task force on Reform of the Office of Faith-Based and Neighborhood Partnerships
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